**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 00-1160]{.smallcaps}

[Garry J. Augustine, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided November 23, 2004 )

*J. Marc Burgess* (non-attorney practitioner), of Washington, D.C., was
on the brief for the appellant.

*Tim S*. *McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Brian B. Rippel*, Acting Deputy Assistant General
Counsel; and *Jimmy R. Moye*, all of Washington, D.C., were on the brief
for the appellee.

Before IVERS, *Chief Judge*, and GREENE and HAGEL, *Judges*.

HAGEL, *Judge*: Before the Court is Garry J. Augustine\'s appeal from a
March 10, 2000, Board of Veterans\' Appeals (Board) decision in which
the Board found no clear and unmistakable error in a February 1972 VA
regional office decision in which the regional office did not award Mr.
Augustine special monthly compensation at the rate specified in 38
U.S.C. \_ 314(m) (1972). In a February 11, 2004, single-judge order, the
Court affirmed the decision. On March 1, 2004, Mr. Augustine filed a
timely motion for a panel decision. The Court now grants that motion and
will revoke the February 11, 2004, single-judge order and issue this
opinion in its place. For the reasons that follow, the Court will affirm
the March 10, 2000, Board decision.

Despite the extensive procedural history of this case, the only issue
before the Court is the narrow issue of whether Mr. Augustine\'s loss of
left-forearm supination and pronation constituted \"loss of use of one
extremity at a level or with complications preventing natural elbow . .
. action\" as defined in 38 C.F.R. \_ 3.350(c)(1), (f)(1)(i) (1971),
thus entitling him, in 1972, to special monthly compensation at a higher
rate. Mr. Augustine argues that it does. Motion for Panel Decision at
9-11. Specifically, he asserts that under \_ 3.350(c)(1), \"natural
elbow . . . action\" is deemed prevented if a veteran experiences
\"ankylosis,\" commonly defined as the \"immobility and consolidation of
a joint.\" *Id.*[; Dorland\'s Illustrated Medical
Dictionary]{.smallcaps} 86 (28th ed. 1994). Next, he contends that
\"ankylosis\" under \_ 3.350(c)(1) has the same meaning as \"unfavorable
ankylosis\" under 38 C.F.R. \_ 4.71a, Diagnostic Code 5205 (1971). *Id.*
Finally, he argues that at the time of the 1972 regional office decision
he had \"unfavorable ankylosis\" as characterized by Diagnostic Code
5205 because he lacked supination and pronation of his left forearm even
though he had movement in his left-elbow joint from 40 to 100 degrees.
*Id.*

**I. FACTS**

Mr. Augustine served on active duty in the U.S. Army from August 1969 to
December 1971, including service in Vietnam. Record (R.) at 19. In a
February 1972 decision, the regional office determined that he was
entitled to special monthly compensation at the rate specified in 38
U.S.C. \_ 314(*l*) because he had lost the use of one of his hands and
one of his feet. R. at 38. The regional office further determined that
he was entitled to special monthly compensation at the next higher
intermediate rate, the rate intermediate between 38 U.S.C. \_ 314(*l*)
and (m), because he also had additional service-connected disabilities
ratable at 50% or more. R. at 38. Mr. Augustine did not appeal that
decision.

In February 1992, Mr. Augustine, through a representative, sent a letter
to the regional office in which he argued that there was clear and
unmistakable error in the February 1972 regional office decision insofar
as the regional office had failed to award him special monthly
compensation at the rate specified in 38 U.S.C. \_ 314(m) despite his
loss of left-forearm supination and pronation. R. at 47-48. The regional
office denied his claim. R. at 51.

After additional procedure, Mr. Augustine appealed to this Court. In an
October 6, 1998, single-judge memorandum decision, the Court remanded
the matter for further adjudication. Before doing so, however, the Court
noted that \"\[t\]here are . . . definitive statements in the record
indicating that supination and pronation in \[Mr. Augustine\'s\] elbow
were totally absent, a fact which, as \[Mr. Augustine\] correctly
argues, constitutes unfavorable ankylosis under \_ 3.350(c)(1).\"
*Augustine v. West*, No. 97-0505, 1998 U.S. Vet. App. LEXIS 1194, at
\*11 (Oct. 6, 1998).

The Board eventually issued the March 10, 2000, decision on appeal, in
which it denied Mr. Augustine\'s claim. R. at 16. The Board found that,
at the time of the 1972 regional office decision, Mr. Augustine could
not pronate or supinate his left forearm but did have \"demonstrable
motion of the left elbow from 40 to 100 degrees.\" R. at 4, 13. The
Board also noted that \"the available Army records document\[ed\] that
there was no ankylosis of the left\[-\]elbow joint.\" R. at 13. The
Board determined that, although Mr. Augustine \"suffered the loss of
supination and pronation of the left forearm,\" it is \"undebatable that
he also had a range of motion in the left elbow which could reasonably
be interpreted as not showing a loss of natural elbow action.\" *Id.*
Therefore, the Board concluded, Mr. Augustine was not entitled to
special monthly compensation under 38 U.S.C. \_ 314(m). R. at 14.

In a July 2, 2002, single-judge memorandum decision, this Court affirmed
the March 2000 Board decision. *Augustine v. Principi*, No. 00-1160,
2002 U.S. Vet. App. LEXIS 505 (July 2, 2002). The United States Court of
Appeals for the Federal Circuit (Federal Circuit) subsequently vacated
the July 2002 decision and remanded the matter. *Augustine v. Principi*,
343 F.3d 1334 (Fed. Cir. 2003). In its decision, the Federal Circuit
rejected an argument by Mr. Augustine that the statement made by the
Court in its October 6, 1998, decision, *see* *Augustine*, 1998 U.S.
Vet. App. LEXIS 1194, at \*11, had become the law of the case.
*Augustine*, 343 F.3d at 1339. In doing so, the Federal Circuit held
that the law-of-the-case doctrine did not apply to the Court\'s
statement because \"the question of \[Mr.\] Augustine\'s entitlement to
the \[rate intermediate between 38 U.S.C. \_ 314(*l*) and (m)\] under
38 C.F.R. \_ 3.350(f)(1)(i) ha\[d\] never been finally decided by the .
. . Court.\" *Id.* ~~at 1339.~~

On February 11, 2004, this Court, in a single-judge order, affirmed the
March 2000 Board decision. *Augustine v. Principi*, No. 00-1160, 2004
U.S. Vet. App. LEXIS 43 (Feb. 11, 2004). Mr. Augustine then filed a
motion for panel decision. In that motion, Mr. Augustine concedes that
\"the Federal Circuit \[had\] rejected his law\[-\]of\[-\]the\[-\]case
argument.\" Further, he reiterates the arguments that he made in his
primary brief, asserting that

> \[t\]he controversy in the instant case . . . is whether
> \_ 3.350(f)(1)(i), if properly applied to the loss of pronation and
> supination in the \[his\] left elbow, required that \[he\] be awarded
> special monthly compensation at the \[rate intermediate between
> 38 U.S.C. \_ 314(*l*) and (m)\] as a matter of law based on VA\'s
> determination that complete loss of pronation and supination is
> unfavorable ankylosis of an elbow pursuant to \[D\]iagnostic \[C\]ode
> 5205.

Motion for Panel Decision at 8. He argues that the Court must decide
\"whether \[his\] absence of supination and pronation is the equivalent
of loss of use of an arm at a level within the meaning of
\_\_ 3.350(f)(1)(i)\[,\] 4.71a (\[D\]iagnostic \[C\]ode 5205).\" *Id.*
at 11.

In sum, Mr. Augustine now argues that his loss of supination and
pronation is the equivalent of loss of use of an arm at a level within
the meaning of the regulations. He further argues that he was entitled
to (1) an increase, under \_ 3.350(f)(1)(i), of his special monthly
compensation from the rate specified in 38 U.S.C. \_ 314(*l*) to the
rate intermediate between 38 U.S.C. \_ 314(*l*) and (m) and (2) an
additional increase, under \_ 3.350(f)(3), from the rate intermediate
between 38 U.S.C. \_ 314(*l*) and (m) to the rate under 38 U.S.C.
\_ 314(m), because of his additional service-connected disabilities
ratable at 50% or more.

The Secretary, in his brief submitted prior to the Court\'s July 2,
2002, single-judge decision, argues that \"\[t\]his Court has defined
ankylosis as \'\[\]immobility and consolidation of a joint due to
disease, injury or surgical procedure.\'\" Secretary\'s Brief (Br.) at 8
(citing *Shipwash v. Brown*, 8 Vet.App. 218, 221 (1995)). Noting the
regional office\'s finding that \"even though there was loss of
pronation and supination, there was still limited movement in the
joint,\" the Secretary asserts that \"there is no evidence of record at
the time \[of the 1972 decision\] that \[Mr. Augustine\'s\] left elbow
met the definition of ankylosis.\" *Id.* at 9-10 (citing R. at 37).
Accordingly, the Secretary contends, Mr. Augustine was not entitled to
special monthly compensation at a higher rate. *Id.*

**II. ANALYSIS**

**A prior final regional office decision must be reversed or revised
where evidence establishes clear and unmistakable error. *See* 38 U.S.C.
§ 5109A; 38 C.F.R. § 3.105(a) (2003). Because an allegation of clear and
unmistakable error represents a collateral attack on a decision that has
become final, an appellant who alleges clear and unmistakable error in
such a decision \"bears an extra-heavy burden\" of persuasion. *Berger
v. Brown*, 10 Vet.App. 166, 169 (1997). Clear and unmistakable error is
established when the following conditions are met. First, either (1) the
correct facts in, or constructively in, the record were not before the
adjudicator or (2) the statutory or regulatory provisions extant at the
time were incorrectly applied. *See* *Damrel v. Brown*, 6 Vet.App. 242,
245 (1994). Second, the alleged error must be \"undebatable,\" not
merely \"a disagreement as to how the facts were weighed or evaluated.\"
*Russell v. Principi*, 3 Vet.App. 310, 313-14 (1992) (en banc). Finally,
the alleged error \"must be the sort of error which, had it not been
made, would have manifestly changed the outcome at the time it was
made.\" *Id.*; *see Bustos v. West*, 179 F.3d 1378, 1380 (Fed. Cir.
1999) (expressly adopting \"manifestly changed the outcome\" language in
*Russell*, 3 Vet.App. at 313-14). When the Court reviews a Board
determination that there was no clear and unmistakable error in a prior
final regional office decision, the Court\'s review is limited to
determining whether the Board\'s conclusion in that regard 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).**

To receive the rate of special monthly compensation provided for by
\_ 3.350(f)(1)(i), the rate intermediate between 38 U.S.C. \_ 314(*l*)
and (m), a veteran must experience the \"\[a\]natomical loss or loss of
use of one extremity at a level or with complications preventing natural
elbow . . . action.\" While \_ 3.350(c)(1) does not explicitly define
the phrase \"natural elbow . . . action,\" that regulation does provide
some guidance by explaining that

> \[i\]n determining whether there is natural elbow or knee action with
> prosthesis in place, consideration will be based on whether use of the
> proper prosthetic appliance requires natural use of the joint, or
> whether necessary motion is otherwise controlled, so that the muscles
> affecting the joint motion, *if not already atrophied, will become
> so.* If there is no movement in the joint, as in *ankylosis* or
> complete paralysis, use of prosthesis is not to be expected, and the
> determination will be as though there were one in place.

38 C.F.R. \_ 3.350(c)(1) (emphasis added). The key determination of
whether there is \"natural elbow . . . action,\" therefore, is whether
the muscles used to move the elbow joint are atrophied or are projected
to become so. One can divine from the language of the regulation that if
the muscles used to move the elbow joint are atrophied or will become
so, then there is no \"natural elbow . . . action.\"

In this case, at the time of the 1972 regional office decision, Mr.
Augustine had not suffered the anatomical loss of his left arm;
therefore, he must show that at that time he experienced the loss of use
of his left arm at a level or with complications preventing \"natural
elbow . . . action.\" 38 C.F.R. \_ 3.350(c)(1), (f)(1)(i). In his
attempt to make such a showing, however, Mr. Augustine has failed to
point to any evidence before the regional office in 1972 that reflected
that the muscles used to move his elbow joint were atrophied or would
become atrophied. Accordingly, he cannot demonstrate that he lacked
\"natural elbow . . . action\" at that time. *Id.* Considering that the
evidence that Mr. Augustine needed to produce in order to prevail on his
claim was not before the regional office in 1972, no error committed by
the regional office could constitute clear and unmistakable error
because, without that evidence, the outcome of its decision--a denial of
his claim--would have been the same even if the regional office had not
committed any such error. *See Russell*, 3 Vet.App. at 313-14; *see also
Bustos*, 179 F.3d at 1380. Accordingly, the March 2000 Board decision
was not arbitrary and capricious insofar as the Board determined that
the 1972 regional office decision was not the product of clear and
unmistakable error because \"it is undebatable that \[Mr. Augustine\]
also had a range of motion in the left elbow which could reasonably be
interpreted as not showing a loss of natural elbow action.\" R. at 13.

Mr. Augustine disagrees and in doing so advances a chain of assumptions
that leads to his conclusion that the 1972 regional office erred by
failing to determine that his loss of supination and pronation of his
forearm, even with movement in his elbow joint from 40 to 100 degrees,
constituted, via Diagnostic Code 5205, the loss of \"natural elbow . . .
action\" under \_ 3.350(c)(1). Motion for Panel Decision at 11.
Diagnostic Code 5205, on which Mr. Augustine relies, enumerates, for
rating purposes, the following categories of ankylosis of the elbow:

> Unfavorable, at an angle of less than 50 \[degrees\] or with complete
> loss of supination or pronation.
>
> Intermediate, at an angle of more than 90 \[degrees\], or between 70
> \[degrees\] and 50 \[degrees\].
>
> Favorable, at an angle between 90 \[degrees\] and 70 \[degrees\].

38 C.F.R. \_ 4.71(a), Diagnostic Code 5205.

The first link in Mr. Augustine\'s chain of assumptions is that loss of
supination and pronation alone, even with movement in the elbow joint,
can constitute \"unfavorable ankylosis\" under Diagnostic Code 5205. His
next link is that in the sentence in \_ 3.350(c)(1) beginning with
\"\[i\]f there is no movement in the joint, as in ankylosis or complete
paralysis,\" the term \"ankylosis\" must have the same meaning as the
phrase \"unfavorable ankylosis,\" which Mr. Augustine contends can be
manifested by loss of supination and pronation alone even if there is
movement in the elbow joint. The final link is that loss of supination
and pronation even with movement in the joint--\"unfavorable ankylosis\"
under Mr. Augustine\'s interpretation--constitutes a lack of \"natural
elbow . . . action\" as defined in \_ 3.350(c)(1).

Mr. Augustine\'s chain of assumptions cannot withstand scrutiny. Even
assuming that his first two assumptions are correct, a determination
that this Court does not make, his final assumption fails insofar as it
completely ignores the fact that the determination, under
\_ 3.350(c)(1), of whether a veteran has \"natural elbow . . . action\"
is defined in terms of muscle atrophy and prospective muscle atrophy.
Moreover, he fails to acknowledge that that determination is based on
evidence, or the lack of evidence, regarding muscle atrophy or
prospective muscle atrophy even when a veteran has no movement in the
joint, as in a veteran who experiences ankylosis or paralysis. 38 C.F.R.
\_ 3.350(c)(1).

In conclusion, Mr. Augustine has failed to demonstrate that the Board\'s
determination that there was no clear and unmistakable error in the
February 1972 regional office decision was \"arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.\"
38 U.S.C. § 7261(a)(3)(A); *see Russell*, 3 Vet.App. at 315. The Court
further concludes that the Board\'s determination in that regard was
supported by an adequate \"statement of reasons or bases.\" 38 U.S.C. §
7104(d)(1); *see Eddy*, 9 Vet.App. at 57.

**III. CONCLUSION**

**On consideration of the foregoing, the Court\'s February 11, 2004,
order is REVOKED, and the March 10, 2000, Board decision is AFFIRMED.**