Case A26040272

S. SORATHIA · 2026 · Case ID: A26040272

DENIED

Summary

The veteran, who served from November 1969 to August 1977, appeals the denial of a clear and unmistakable error (CUE) claim. The veteran sought an earlier effective date than January 10, 1997, for a 10 percent disability rating for his service-connected right ankle condition. The Board reviewed the history of the claim, noting that service connection was initially granted in November 1977 with a noncompensable rating. In March 1997, the rating was increased to 10 percent, effective January 10, 1997, based on a VA treatment record showing right ankle pain. The veteran's attorney argued that CUE occurred because service treatment records, received in March 2016, showed a loss of motion in the right ankle (10 degrees dorsiflexion) as early as August 1975, which was not considered in prior decisions. The Board found no undebatable error, noting that while the August 1975 record showed limited motion, the October 1977 VA examination, which reflected full range of motion, was more probative. The Board also clarified that the rating criteria for musculoskeletal conditions changed in December 1995, requiring consideration of pain and functional loss, and the veteran's increased rating claim in February 1997 was based on these newer criteria. Therefore, the Board concluded that the prior decisions did not contain CUE and denied the claim for an earlier effective date.

Rationale

No undebatable error found in prior rating decisions regarding effective date.; August 1975 service record showing limited motion was less probative than October 1977 VA exam showing full range of motion.; Rating criteria changed in 1995; increased rating claim in 1997 was based on new criteria.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

260312-635235

Full Decision Text

Citation Nr: A26040272
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 260312-635235
DATE: April 29, 2026

ORDER

An effective date earlier than January 10, 1997, for the assignment of a 10 percent disability rating for fracture distal fibula with exostosis on medial malleolus of the right ankle with degenerative joint disease (right ankle disability) based on clear and unmistakable error (CUE) in a previous rating decision is not warranted and the claim is denied.

FINDING OF FACT

The agency of original jurisdiction (AOJ) rating decisions assigning an effective date of January 10, 1997, for the assignment of a 10 percent disability rating for the Veteran's service-connected right ankle disability considered the correct evidence and applied the correct law existent at the appointed times; they did not involve a clear error that would lead to a different result if such error were corrected.

CONCLUSION OF LAW

The criteria to establish CUE in previous rating decisions assigning an effective date of January 10, 1997, for the assignment of a 10 percent disability rating for the Veteran's service-connected right ankle disability have not been met; the decisions remain final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1969 to August 1977.

This case initially comes to the Board of Veterans' Appeals (Board) on appeal from a February 2026 rating decision of the AOJ which was subsequently subject to higher-level review (HLR) in March 2026. Specifically, the February 2026 rating decision continued a 10 percent disability rating for the Veteran's right ankle disability and the March 2026 HLR rating decision found that an effective date earlier than January 10, 1997, for the assignment of a 10 percent disability rating for the Veteran's right ankle disability was not warranted based on CUE.

In a March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran appealed the March 2026 HLR rating decision, electing the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the February 2026 AOJ decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to HLR the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In adjudicating the Veteran's appeal, the Board acknowledges the recent United States Court of Appeals for Veterans Claims (Court) decision in Williams v. McDonough, 37 Vet. App. 305 (2024), which found that under 38 C.F.R. § 20.202(c)(2), the Board generally may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. 38 C.F.R. § 20.202(c) allows appellants to switch AMA dockets by completing and submitting a new VA Form 10182 within 60 days from when the Board receives the original VA Form 10182, or one year from the date the AOJ mails notice of the decision on appeal, whichever is later, unless: (1) an appellant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, or (2) the appellant or representative has requested a waiver of the ability to request to switch dockets during this timeframe. See also Williams, 37 Vet. App. 305. In this case, however, the Veteran's attorney waived the Veteran's right to switch dockets in a Williams waiver letter dated in March 2026.

Analysis

By way of history, the Veteran submitted an initial claim for service connection for a right ankle disability in August 1977 and, following an October 1977 VA examination of the right
appeal, whichever is later, unless: (1) an appellant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, or (2) the appellant or representative has requested a waiver of the ability to request to switch dockets during this timeframe. See also Williams, 37 Vet. App. 305. In this case, however, the Veteran's attorney waived the Veteran's right to switch dockets in a Williams waiver letter dated in March 2026.

Analysis

By way of history, the Veteran submitted an initial claim for service connection for a right ankle disability in August 1977 and, following an October 1977 VA examination of the right ankle showing no limitation of motion, by rating decision dated in November 1977, the AOJ granted service connection for a right ankle disability, assigning a noncompensable disability rating effective August 7, 1977.

In February 1997, the Veteran submitted a claim for an increased rating for his right ankle disability and, by rating decision dated in March 1997, the AOJ increased the disability rating for the Veteran's right ankle from noncompensable to 10 percent disabling, effective January 10, 1997, the date of a VA treatment record showing right ankle pain. This 10 percent disability rating was continued by rating decisions dated in February 2010, January 2018, August 2018, May 2020, June 2021, and March 2024.

The Veteran contends that the above discussed rating decisions involved CUE in their assignment of an effective date of January 10, 1997, for the assignment of a 10 percent disability rating for the Veteran's right ankle disability. The Veteran's identification of the alleged CUE is presented in detail most significantly in written arguments from the Veteran's attorney representative dated in February 2026 and March 2026. Specifically, the Veteran's attorney requested VA consider his claim under the provisions of 38 C.F.R. § 3.156(c) because the Veteran's service treatment records were not associated with his claims file until March 2016 and these records showed that the Veteran experienced loss of motion of the right ankle (just 10 degrees of dorsiflexion) as early as August 1975.

An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of the decision unless it is shown that the decision involved CUE. 38 U.S.C. § 7105. Where CUE is found in a prior AOJ decision, the prior decision will be reversed or revised. For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds 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. § 3.105(a).

CUE is a very specific and rare kind of error; it is the 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. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993).

Absent evidence to the contrary and consistent with the holdings of the Court, the Board will presume the RO correctly discharged its official duties, to include consideration of all evidence then of record and proper consideration and application of all relevant laws and regulations. See Dolan v. Brown, 9 Vet. App. 358, 362 (1996); see also Ashley v. Derwinski, 2 Vet. App. 62, 64 (
v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993).

Also pertinent to this appeal are the rating criteria for the Veteran's right ankle disability. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71(a), Diagnostic Codes (DCs) 5271-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, with the additional code shown after the hyphen. See 38 C.F.R. § 4.27. Therefore, DC 5003 is assigned to represent the arthritis affecting the right ankle, while DC 5271 is assigned to represent limitation of motion in the right ankle.

Under DC 5271, a 10 percent rating is assigned for "moderate" limitation of motion of the ankle. In order to warrant a higher, 20 percent rating, "marked" limitation of motion must be shown. 38 C.F.R. § 4.71(a).

Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71(a), Plate II.

The Rating Schedule does not otherwise define "moderate" or "marked;" however, according to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked.

Under DC 5003, degenerative arthritis of a major joint (including the ankle) will be rated under the criteria for limitation of motion of the affected joint. 38 C.F.R. § 4.71(a), DCs 5003, 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71(a), DC 5003.

When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).

The Board must consider whether the rating decisions under scrutiny, specifically, the August 1977, November 1977, March 1997, February 2010, January 2018, August 2018, May 2020, June 2021, and March 2024 rating decisions, would undebatably have had a different outcome if they had been adjudicated properly without the contended error. In other words, the Veteran's appeal to establish CUE in the prior decisions features an assertion not only that the decisions contain an identifiable error, but also an assertion that there otherwise existed no reasonable basis to support arriving at the outcome of the decisions here challenged by the Veteran.
. App. 7 (1996).

As a threshold matter, the Board finds the arguments advanced by the Veteran and his attorney to allege CUE in previous rating decisions have not been entirely conveyed with the requisite specificity. Specifically, neither the Veteran nor his attorney have indicated which previous rating decision contained CUE. However, the Board will broadly construe the contentions made as asserting CUE in every rating decision regarding the right ankle and adjudicate the merits of the CUE contentions. See Simmons v. Principi, 17 Vet. App. 104, 114-115 (2003); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing the denial of a CUE claim, due to a pleading deficiency, and the denial of a CUE on the merits).

As above, the Veteran's representative requested VA consider the Veteran's claim under the provisions of 38 C.F.R. § 3.156(c) because the Veteran's service treatment records were not associated with his claims file until March 2016 and these records show that the Veteran experienced loss of motion of the right ankle (just 10 degrees of dorsiflexion) as early as August 1975. The Veteran's representative argued that the receipt of the records in March 2016, showing that the Veteran met the criteria for an initial 10 percent rating since service, were new and material to the case and required the reopening of the Veteran's original August 1977 claim for his ankle condition.

Pursuant to 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name. 38 C.F.R. § 3.156(c)(1).

In this case, the Board finds that no undebatable error is shown here. Nothing of record, and no argument presented in this case, establishes, undebatably, that a 10 percent rating was warranted for the Veteran's right ankle disability as of the date of service connection. While an August 1975 service treatment record shows that the Veteran experienced loss of motion of the right ankle (just 10 degrees of dorsiflexion) during service, the October 1977 VA examination showed full range of motion of the right ankle. As such, even if the August 1975 service treatment record was associated with the claims file at the time of the initial November 1977 rating decision granting service connection, the October 1977 VA examination findings were more probative as they were a better reflection of the Veteran's disability at the time the rating assigned.

Also, as was noted in the February 2026 rating decision, the service treatment records added to the claims file in March 2016, particularly the August 1975 service treatment record, would not have, in and of itself, resulted in a change in the rating assigned in the November 1977 rating decision. The evaluation was based on the laws in place at the time of the rating and the compensation examination, not the service treatment record findings. Additionally, it was not until a change in the law on December 22, 1995, when it became a requirement that VA analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca. Significantly, the Veteran's initial claim was dated prior to the change in the law in 1995. The Veteran's February 1997 claim for
the time of the rating and the compensation examination, not the service treatment record findings. Additionally, it was not until a change in the law on December 22, 1995, when it became a requirement that VA analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca. Significantly, the Veteran's initial claim was dated prior to the change in the law in 1995. The Veteran's February 1997 claim for an increased rating, which resulted in an increase from noncompensable to 10 percent effective January 10, 1997 (the date the evidence first showed an increase was warranted) was based on painful or limited motion of a major joint as required by the December 22, 1995, law change.

For the reasons discussed above, the Board finds that the Veteran has not identified any CUE in this case to warrant revision of any prior final rating decision concerning his right ankle disability, and, as such, an effective date earlier than January 10, 1997, for the assignment of a 10 percent disability rating for the Veteran's right ankle disability is not warranted.

S. Sorathia

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board April Maddox, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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