Veteranclaims’s Blog

April 18, 2022

Single Judge Application; CUE; 1945 Rating Schedule; the addition of a 50% rating for MG19 (to replace the 10%) to the appellant’s three other compensable ratings would apparently have produced a combined rating of 80%, 38 C.F.R. § 4.25, an increase from the appellant’s combined rating of 70%, thus manifestly changing the outcome of the RO decision. Under this analysis, the Board’s determination that there was no CUE in the 1947 RO decision (as amended by the 1985 RO decision) would appear to have been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A);

Filed under: Uncategorized — veteranclaims @ 9:20 pm

NO. 96-114
Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.
The appellant, Alfred L. Brown, appealed through counsel a February 8, 1996, decision of
the Board of Veterans’ Appeals (BVA or Board) that denied a claim of clear and unmistakable error
(CUE). On February 20, 1998, the Court issued a single-judge memorandum decision that affirmed
the BVA decision. Brown v. West, No. 96-114, 1998 WL 89120, at *1 (Vet. App. Feb. 20, 1998).
The appellant appealed, and the U.S. Court of Appeals for the Federal Circuit issued an opinion
vacating this Court’s judgment and remanding the case for further proceedings. Brown v. West,
203 F.3d 1378 (Fed. Cir. 2000). On February 12, 2002, the Court issued an opinion affirming the
February 1996 BVA decision. Brown v. Principi, 15 Vet.App. 421, 428 (2002). On March 1, 2002,
the appellant filed a motion for reconsideration. On October 15, 2002, the appellant’s counsel filed
a notice that the appellant had died on September 11, 2002. The appellant’s counsel requests, in part,
that the Court dismiss this appeal for lack of jurisdiction on the ground that the appellant’s death
moots the appeal.
An appellant’s disability compensation claims, including claims of CUE, “die[ ] with him.”
Landicho v. Brown, 7 Vet.App. 42, 52 (1994); see Haines v. West, 154 F.3d 1298, 1300-02 (Fed. Cir.
1998). This Court held in Landicho that, where the appellant is a veteran who dies while the Board’s
denial of such claims is pending here on appeal, the appropriate remedy is to vacate the Board
decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 53-54;
see Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir.1996) (expressly agreeing with this
Court’s Landicho holding).
The vacatur of the BVA decision ensures that the Board decision and the underlying VA
regional office (RO) decision(s) will have no preclusive effect in the adjudication of any
accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous RO
merits adjudication because that decision was subsumed in the Board decision. See Yoma v. Brown,
8 Vet.App. 298, 299 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80
(1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this
appeal has become moot by virtue of the appellant’s death, the Court’s February 1998 memorandum
decision and February 2002 opinion will be withdrawn, the Court will issue no opinion in this
matter, and the appeal will be dismissed. See Haines, 154 F.3d at 1300-02; Landicho, 7 Vet.App.
at 53-54.
Upon consideration of the foregoing, it is
ORDERED that the appellant’s motion for reconsideration is denied as moot. It is further
ORDERED that the Court’s February 20, 1998, memorandum decision and February 12,
2002, opinion are withdrawn. It is further
ORDERED that the February 8, 1996, BVA decision is VACATED. It is further
ORDERED that this appeal is DISMISSED for lack of jurisdiction.
DATED: November 19, 2002 PER CURIAM.
KRAMER, Chief Judge, concurring: I concur in the disposition of this case and write
separately to offer my individual views on the appellant’s underlying claim. In his motion for
reconsideration, the appellant had argued, inter alia, that a VA regional office (RO) in 1947 should
have rated his service-connected injury to Muscle Group (MG) 19 as 50% disabling based on the
requirements of the Note on page 44 [hereinafter Note] of the 1945 edition of the VA Schedule for
Rating Disabilities [hereinafter 1945 Rating Schedule] (Record (R.) at 1266). Motion at 1-5.
The appellant served on active duty in the U.S. Army from May 1944 to July 1945, with
combat service in the European Theater of World War II. R. at 140. As more fully explained in the
Court’s February 2002 opinion, Brown v. Principi, 15 Vet.App. 421, 422-23 (2002), the appellant
was severely wounded by an explosive shell fragment that penetrated through the right side of his
body and lodged in the back of the chest wall. R. at 135. On the way through his body, the shell
fragment created a compound comminuted fracture of his seventh rib and damaged his abdomen
(MG 19). R. at 123. At his death, the appellant was rated at 10% for MG19, as well as 40% for
pleural cavity, 30% for liver, 20% for MG21, 0% for right kidney, and 0% for right adrenal gland
injuries, for a combined rating of 70%. R. at 800-02.
Under Diagnostic Code 5319 (R. at 1268), of the 1945 Rating Schedule, a severe disability
is rated as 50% disabling. The pertinent portions of the 1945 Rating Schedule provide:

  1. Factors to be Considered in the Evaluation of Disabilities Residual to
    Healed Wounds Involving Muscle Groups Due to Gunshot or Other Trauma.
    . . . .
    (4) Severe Disability of Muscles.
    Type of injury.–Through and through or deep penetrating wound due to high
    velocity missile, or large or multiple low velocity missiles, or explosive effect of high
    velocity missile, or shattering bone fracture, with extensive debridement or prolonged
    infection and sloughing of soft parts, intermuscular binding and cicatrization.
    History and complaint.–As under moderately severe above, in aggravated
    Objective findings.–Extensive ragged, depressed, and adherent scars of skin
    so situated as to indicate wide damage to muscle groups in track of missile. X-ray
    may show minute multiple scattered foreign bodies indicating spread of
    intermuscular trauma and explosive effect of missile. Palpation shows moderate or
    extensive loss of deep fascia or of muscle substance. Soft or flabby muscles in
    wound area. Muscles do not swell and harden normally in contraction. Tests of
    strength or endurance compared with the sound side or of coordinated movements
    show positive evidence of severe impairment of function. In electrical tests, reaction
    of degeneration is not present but a diminished excitability to Faradism compared
    with the sound side may be present. Visible or measured atrophy may or may not be
    present. Adaptive contraction of opposing group of muscles, if present, indicates
    severity. Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum
    or vertebrae, with epithelial sealing over the bones without true skin covering, in an
    area where bone is normally protected by muscle, indicates the severe type. Atrophy
    of muscle groups not included in the track of the missile, particularly of the trapezius
    and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and
    induration and atrophy of an entire muscle following simple piercing by a projectile
    (progressive sclerosing myositis), may be included in the severe group if there is
    sufficient evidence of severe disability.
    1945 Rating Schedule, § 17(4); R. at 1263-65.
    Note–In rating disability from injuries of the musculoskeletal system,
    attention is to be given first to the deeper structures injured, bones, joints, and nerves.

    A compound comminuted fracture, for example, with muscle damage from the
    missile, establishes severe muscle injury, and there may be additional disability from
    malunion of bone, ankylosis, etc. The location of foreign bodies may establish the
    extent of penetration and consequent damage. It may not be too readily assumed that
    only one muscle, or group of muscles is damaged. A through and through injury,
    with muscle damage, is always at least a moderate injury, for each group of muscles
    1945 Rating Schedule, Muscle Injuries, Note (emphasis added); R. at 1266-67.
    The Note provides a special rule for rating muscle injuries as severe where there is a
    compound comminuted fracture from the same missile that damaged the muscle. There is nothing
    in section 17 (R. at 1263-65) that appears to contradict that special rule. Although under section
    17(4) (rating muscle injuries as severe due to shattering bone fracture), a veteran would apparently
    need symptomatology (such as sloughing of soft parts and intermuscular binding) beyond what is
    required by the Note, not all shattering or comminuted bone fractures are compound fractures, which
    require that the bone be open to the air in addition to having been shattered. See DORLAND’S
    ILLUSTRATED MEDICAL DICTIONARY 660-61 (28th ed. 1994). Thus, where the Note’s criteria are
    met, it does not appear also to be necessary to meet the criteria of section 17(4).
    A prior RO decision must be reversed or revised where evidence establishes clear and
    unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2001). For CUE to exist,
    either (1) the correct facts in or constructively in the record were not before the adjudicator or (2) the
    statutory or regulatory provisions in effect at the time of the decision were incorrectly applied. See
    Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Bell v. Derwinski, 2 Vet.App. 611, 612-13 (1992)
    (per curiam order). In addition, “the error must be ‘undebatable’ and of the sort ‘which, had it not
    been made, would have manifestly changed the outcome at the time it was made.'” Damrel,
    6 Vet.App. at 245 (quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)); see also
    Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the “manifestly changed
    the outcome” language in Russell, supra). On appeal of a Board of Veterans’ Appeals (Board or
    BVA) determination that there was no CUE in a prior final RO decision, the Court’s review is limited
    to determining whether the Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law” (38 U.S.C. § 7261(a)(3)(A)) and whether it is supported by
    an adequate statement of “reasons or bases” (38 U.S.C. § 7104(d)(1)). See Eddy v. Brown,
    9 Vet.App. 52, 57 (1996); Damrel, 6 Vet.App. at 246; Russell, 3 Vet.App. at 315.
    Based on the Note, it appears that the RO erred in failing to award a 50% rating for the MG19
    injury. Moreover, the addition of a 50% rating for MG19 (to replace the 10%) to the appellant’s
    three other compensable ratings would apparently have produced a combined rating of 80%,
    38 C.F.R. § 4.25, an increase from the appellant’s combined rating of 70%, thus manifestly changing
    the outcome of the RO decision. Under this analysis, the Board’s determination that there was no
    CUE in the 1947 RO decision (as amended by the 1985 RO decision) would appear to have been
    “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 38 U.S.C.
    § 7261(a)(3)(A). Had the appellant not died, I believe that the Court would likely have so held,
    thereby reversing the February 8, 1996, BVA decision as to the MG19 CUE claim and remanding
    the matter to the Board for payment of past-due benefits.
    In this regard, I note that neither the Board nor this Court can provide equitable relief. See
    Moffitt v. Brown, 10 Vet.App. 214, 225 (1997) (“Court is not a court of equity and cannot provide
    equitable relief” (citing Harvey v. Brown, 6 Vet.App. 416, 425 (1994)); cf. Suttmann v. Brown,
    5 Vet.App. 127, 138 (1993) (holding that BVA lacks jurisdiction to review Secretary’s exercise of
    38 U.S.C. § 503(a) equitable-relief discretion). However, the appellant’s survivors are free to apply
    to the Secretary for the exercise of his equitable-relief discretionary authority under 38 U.S.C. § 503.
    See 38 C.F.R. § 2.7 (2001); Taylor v. West, 11 Vet.App. 436, 440-41 (1998); Zimmick v. West,
    11 Vet.App. 45, 50-51 (1998); Moffit, 10 Vet.App. at 225 (citing, inter alia, Darrow v. Derwinski,
    2 Vet.App. 303, 304-06 (1992) (holding that section 503(a) authorizes Secretary to grant relief that
    is equitable in nature as distinct from Secretary’s authority, exercised through Board, to determine
    entitlement to benefits under law)); Erspamer v. Brown, 9 Vet.App. 507, 512 (1996) (holding that,
    because authority to grant equitable relief under section 503 is discretionary with Secretary, that
    authority is not appropriate ground for Court to use as basis for remand to Board).

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