Citation Nr: 18900006
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180515-26
DATE:	August 15, 2018
ORDER
The motion to revise the February 27, 2015 rating decision based on CUE is granted; and accordingly, the Veteran will be assigned a 10 percent rating for peripheral neuropathy of the right and left foot, respectively, effective from January 29, 2015.
FINDINGS OF FACT
1.	On February 27, 2015, the RO issued a rating decision which granted service connection for peripheral neuropathy of the feet with a non-compensable rating.  
2.	In the February 27, 2015 rating decision which granted service connection for peripheral neuropathy of the feet with a non-compensable rating, the RO failed to correctly apply the service connection regulations then in effect to the evidence of record; absent this error, the outcome of the decision of the Veteran’s service connection claim would have been manifestly different.
CONCLUSION OF LAW
CUE in the RO’s February 27, 2015 rating decision that granted service connection for peripheral neuropathy of the feet with a non-compensable rating has been demonstrated.  38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. §§ 3.104 (a), 3.105(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The moving party served on active duty from January 1990 to April 1990 and from November 2002 to January 2015.  
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in BEAAM, the Board of Veterans’ Appeals (Board) Early Applicability of Appeals Modernization research program.  This decision has been written consistent with the new AMA framework.
1. Entitlement 
Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1103 (2017).  If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104 (a), 3.105(a).
To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked based on CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).
CUE is a very specific and rare kind of error of fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).
CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). For the following reasons, the Veteran has met this burden.
The February 27, 2015 rating decision assigned a noncompensable evaluation for peripheral neuropathy of the left and right feet, respectively, based on a determination of asymptomatic incomplete paralysis.
The Veteran has alleged that he should have received a compensable rating for his service-connected peripheral neuropathy of the feet in the February 27, 2015 rating decision.  Specifically, he argues that the RO failed to interpret the facts, evidence, and diagnosis from the November 2013 VA examination, and a 10 percent evaluation should have been assigned for the Veteran’s service-connected peripheral neuropathy of the feet.  
 
In November 2013, the Veteran underwent a Separation Health Assessment.  At the time of the examination, the Veteran was diagnosed with bilateral foot, mild sensory peripheral neuropathy, with no objective findings on the examination.  During the examination, the Veteran told the examiner that he recalled having right foot pain in January to February 2013, while at Senior Leaders Course at Ft. Benning.  He denied any problems or symptoms with the left foot. He stated that his right foot pain resolved after three months and that he had run twice without pain.  He denied any foot pain or swelling and his prognosis was excellent.  
The Veteran’s peripheral nerves of the lower extremity were examined and there was no pain bilaterally nor any intermittent pain.  However, importantly, there was evidence of mild paresthesias or dysesthesias and numbness bilaterally.    Physical examination showed the feet (other than arch) was abnormal, and the feet (arch) was normal.  There was also evidence of decreased sensation to light touch for the bilateral feet, albeit, that sensation was normal to pinprick and vibration.  Additionally, all nerve examinations were normal as well.  No functional impairment was noted as well as no other pertinent physical findings, complications, conditions, signs or symptoms.  The examiner concluded that the Veteran had mild bilateral foot sensory peripheral neuropathy, with no objective findings, and of an unknown etiology.   
Based upon this examination, as well as the Veteran’s service medical records, the Veteran was service connected for peripheral neuropathy of the feet under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Under Diagnostic code 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a.
 
Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve, respectively. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. 
Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.§ 7104 (2012); 38 C.F.R. §§ 4.2, 4.6 (2017).
In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.
The Veteran’s attorney has alleged that the RO failed to apply the proper provisions of the M21-1, III.iv.4.G.4.a. However, the M21-1 is not binding upon the Board. Nonetheless, the applicable Diagnostic Code is binding upon the Board, and Diagnostic Code 8520 states that “mild” paralysis will receive a 10 percent rating.  Since the RO failed to assign a 10 percent rating from January 29, 2015, the Board has found CUE on the February 27, 2015 rating decision.  The RO’s misapplication of the Diagnostic Code changed the outcome of the assigned rating for the Veteran’s service-connected peripheral neuropathy of the feet.  By correct application of the Diagnostic Code, he would have been rated as 10 percent disabling for each foot.  
For the reasons set forth above, the Board finds CUE in the February 27, 2015 rating decision that denied a compensable rating for peripheral neuropathy of the feet.  

 
BISWAJIT CHATTERJEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Anderson

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