**UNITED STATES COURT OF VETERANS APPEALS**

No. 92-374

[Jerry L. Robertson, Appellant]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

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

On Appellee\'s Motion for Summary Affirmance

(Decided April 28, 1993 )

*Joseph A. Violante* and *Andrew H. Marshall* (non-attorney
practitioner) were on the brief for appellant.

*James A. Endicott, Jr.*, General Counsel, *David T. Landers*, Acting
Assistant General Counsel, *Andrew J. Mullen*, Deputy Assistant General
Counsel, and *Angela Foehl* were on the pleadings for appellee.

Before MANKIN, IVERS, and STEINBERG, *Associate Judges*.

IVERS, *Associate Judge*: The veteran appeals the December 12, 1991,
Board of Veterans\' Appeals (BVA) decision which denied entitlement,
based on clear and unmistakable error in a rating decision issued in
March 1954, to a retroactive rating in excess of 20% for residuals of a
gunshot wound of the low back involving Muscle Group XX. On July 27,
1992, the veteran filed his brief. On August 21, 1992, the Secretary of
Veterans Affairs (Secretary) filed a motion for summary affirmance, for
acceptance of this motion in lieu of a brief, and for a stay of
proceedings pending a ruling on the motion. On September 3, 1992,
appellant filed an opposition to the Secretary\'s motion for summary
affirmance. The Court has jurisdiction over the case under 38 U.S.C.A. §
7252(a) (West 1991).

**I. BACKGROUND**

The veteran, Jerry L. Robertson, served on active duty with the United
States Marine Corps from November 15, 1951, until November 3, 1953. The
veteran saw combat during the Korean Conflict, obtained the rank of
Private First Class, and received an honorable discharge. On December 7,
1952, during combat operations, the veteran was wounded in action (WIA).
R. at 1. The veteran\'s application to the Veterans\' Administration
(now Department of Veterans Affairs) (VA) for compensation describes the
injury: \"Wounded by enemy sniper bullet. Entered left side, ripped part
of spine, and emitted small of back.\" R. at 2. Service medical records
indicate that after being WIA, the veteran received initial treatment at
an emergency medical station where \"wounds were debrided and left
open.\" R. at 12. The report further stated:

> Secondary closure was effected on 16 December 52, aboard \[the
> hospital ship\] *Jutlandia*. The bullet entered left flank posteriorly
> beneath 12th rib and emerged in the midline posteriorly at level L-3
> and X-rays reveal fracture of spinous process of L-3. There is no
> neurological or vascular damage. . . . There is minimal limitation of
> flexion of the spinal column.

R. at 11-12. The veteran received a discharge physical on October 26,
1953. R. at 14-17. The examination report stated: \"Healed wound scars
over left flank and lumbar spine at level L3. Full range of function of
spine.\" R. at 14.

The veteran applied for VA compensation on November 2, 1953, R. at 2-3,
and then received a physical examination on February 16, 1954, R. at
18-22. The diagnoses of that examination concluded: \"1. Scars GSW
\[gunshot wound\] perforating with moderate damage to sacro-spinalis
muscles bilateral and mild damage to left latissimus dorsi. 2. FC
spinous process L3 healed.\" R. at 22. The latissimus dorsi is \"a large
triangular muscle that covers the lumbar and lower half of the posterior
thoracic region.\" *Gray\'s Anatomy* 513 (30th ed. 1984). (This is the
first mention in the record of this particular aspect of the veteran\'s
wound). The VA Regional Office (VARO) issued its rating decision on
March 8, 1954. R. at 23. It determined:

> Veteran suffered a GSW of the back on 12-7-52 which fractured a
> spinous process of L-3. No neurological or vascular damage was
> reported. The VA examination of above date disclosed a 2\" x 1/2\"
> scar of entry in the left flank and a 4\" x 1/2\" scar of exit over
> L-3. There was moderate muscle damage to the sacro-spinalis muscles in
> the area of L-3. There was a minimal limitation of motion of the
> lumbar spine, but all other spinal movements were normal. X-ray showed
> no abnormality whatsoever of the spinous process of L-3.

*Id.* The VA granted service connection for \"GSW, back, involving
Muscle Group XX\" and rated the veteran\'s service-connected disability
at 20%. *Id.*

On December 5, 1988, the veteran applied for an increase in
compensation. In that claim, the veteran noted that he had been treated
by the VA hospital as an outpatient on November 28, 1988. R. at 25. The
veteran\'s clinical progress reports from October 1988 through February
1989 were provided. R. at 26-36. The VARO issued a confirmed rating
decision on June 5, 1989, denying any increase. R. at 37-38. The veteran
filed a Notice of Disagreement in November 1989. R. at 39-40. A
Statement of the Case (SOC) was issued in December 1989. R. at 41-44. A
VARO hearing was held on March 29, 1989. R. at 47‑63. A second VA
medical examination was conducted on March 9, 1990. R. at 64‑68. The
hearing officer issued his decision on August 28, 1990. He denied an
increase and determined that no clear and unmistakable error had been
committed in the March 1954 decision. R. at 69-70. In September 1990, a
Supplemental SOC was issued. R. at 71-75. On March 1, 1991, the BVA
issued its first decision. It addressed two issues: (1) entitlement to
an increased evaluation for the residuals of a gunshot wound of the low
back, rated as 20% disabling and (2) entitlement to a separate
compensable rating for the residuals of a gunshot wound of the left
shoulder girdle (of which the latissimus dorsi is a part). R. at 83-90.
The BVA denied the increase for residuals of the gunshot wound to the
low back. However, it awarded a separate 20% disability rating for
residuals of a gunshot wound of the left shoulder girdle, a second
muscle group (Muscle Group II) involved in the veteran\'s wound.
R. at 89. (The Court notes that the 1991 BVA proceedings present the
first time that the veteran has raised, and the VA or the Board has
considered, injury to this muscle group.)

In October 1991, the veteran petitioned the BVA for reconsideration of
the claim for entitlement to an increased rating for residuals of the
gunshot wound to the low back involving Muscle Group XX, evaluated at
20% disabling, on the basis of clear and unmistakable error in the March
8, 1954, rating decision. R. at 91-97. Reconsideration was granted and,
in December 1991, the BVA reviewed the veteran\'s appeal on this issue.
*Jerry L. Robertson*, BVA 91-40264 (Dec. 12, 1991). In its decision, the
BVA first noted that the VARO had not yet established an effective date
for award of the 20% disability for the wound to the left shoulder
girdle (Muscle Group II). Consequently, the BVA did not address that
issue. *Id.* at 2. As to the issue of whether clear and unmistakable
error had been committed in the original March 8, 1954, rating decision
with regard to the 20% rating for residuals of GSW involving Muscle
Group XX, the BVA focused on the veteran\'s recorded medical history,
particularly the separation examination and the initial VA examination,
which did indicate \"relatively mild function impairment,\" and on
38 C.F.R. Part 4, Diagnostic Code (DC) 5320. *Id.* at 6. The BVA
concluded:

> In summary, despite the through-and-through nature of the wound and
> the associated insignificant vertebral spinous process fracture, the
> precise site of the fracture, the course of treatment and healing, and
> the residual functional impairment noted at the time of separation
> from service and on initial VA examination all indicate that the
> veteran\'s gunshot wound of the low back involving Muscle Group XX was
> no more than moderate in extent.

*Id.* Consequently, the BVA denied a retroactive rating in excess of 20%
based on clear and unmistakable error in the March 1954 rating decision.
*Id.* at 7. The veteran filed a timely appeal to this Court.

**II. ANALYSIS**

Before addressing the issue of clear and unmistakable error, it is
important to take note of the Court\'s recent holding in *Russell v.
Principi*, 3 Vet.App. 310 (1992) (en banc) (consolidated with *Collins
v. Principi*, No. 90-416). In that opinion, the Court addressed the
validity of 38 C.F.R. § 3.105(a) (1992), which authorizes the BVA or a
VARO to revise previous decisions where there was \"clear and
unmistakable error,\" and the scope of this Court\'s judicial review of
that regulation. We upheld the validity of 38 C.F.R. § 3.105(a) which
gives the Secretary the authority to review previous BVA decisions under
\"the clear and unmistakable error\" test, despite the fact that the
regulation was promulgated by the Secretary without a specific statutory
mandate. *Russell*, 3 Vet.App. at 313. We also held that

> our review of a decision, over which we have jurisdiction, i.e., one
> that has considered possible \"clear and unmistakable error\" in
> previous adjudications over which we do not have jurisdiction is
> necessarily limited to determining whether the BVA decision was
> \"arbitrary, capricious, an abuse of discretion, or otherwise not in
> accordance with law. . . .\" *See* 38 U.S.C. § 7261(a)(3)(A) (formerly
> § 4061(a)(3)(A)). Implicit in this holding is the requirement that the
> issue must have been adjudicated below. The necessary jurisdictional
> \"hook\" for this Court to act is a decision of the BVA on the
> specific issue of \"clear and unmistakable error.\" For a claimant to
> raise such an issue for the first time before this Court and request
> us to act de novo is tantamount to requesting plenary review over
> decisions that are not within our jurisdiction. Of course, as is true
> in all cases, this Court must also review to determine whether
> adequate \"reasons or bases\" were given for the instant BVA decision.
> *See* 38 U.S.C. § 7104(d)(1); *Gilbert v. Derwinski*, 1 Vet.App. 49,
> 56‑57 (1990).

*Id.* at 315.

With the issues of both the jurisdiction of this Court and its scope of
review of BVA decisions under section 3.105(a) established, we can
address the December 11, 1991, BVA decision which reviewed the earlier
March 8, 1954, VARO rating decision.

The veteran argues that the relevant regulations require award of a
\"moderately severe\" disability rating, as opposed to the \"moderate\"
disability rating actually awarded, simply because the veteran\'s wound
included debridement. Br. of Appellant at 6, 7-9. *See also* 38 C.F.R. §
4.56 (1992). Debridement is defined as \"the surgical removal of
lacerated, devitalized, or contaminated tissue.\" [Webster\'s Medical
Desk Dictionary 164 (1986).]{.smallcaps} The veteran, therefore, argues
that, since his wound disabled him to a \"moderately severe\" degree, as
opposed to only a \"moderate\" degree, he is entitled to a 40% rating,
instead of a 20% rating, based upon the rating schedule itself. *See* 38
C.F.R. § 4.72, DC 5320 (1992).

Title 38 C.F.R. § 4.56 spells out the \"factors to be considered\" in
establishing the degree of disability. Section 4.56(b) defines
\"moderate\" disability of muscles:

> *\[T\]ype of injury.* Through and through or deep penetrating wounds
> of relatively short track by single bullet or small shell or shrapnel
> fragment are to be considered of at least moderate degree. *Absence of
> explosive effect of high velocity missile and of residuals of
> debridement* or of prolonged infection.
>
> *History and complaint.* Service department record or other sufficient
> evidence of hospitalization in service for treatment of the wound.
> Record in the file of consistent complaint on record from first
> examination forward, one or more of the cardinal symptoms of muscle
> wounds particularly fatigue, fatigue pain after moderate use,
> affecting the particular functions controlled by injured muscles.
>
> *Objective findings.* Entrance and (if present) *exit scars linear or
> relatively small and so situated as to indicate relatively short track
> of missile through muscle tissue; signs of moderate loss of deep
> fascia or muscle substance or impairment of muscle tonus, and of
> definite weakness or fatigue in comparative tests.*

38 C.F.R. § 4.46(b) (1992) (emphasis added). Section 4.56(c) defines
\"factors to be considered\" for \"moderately severe\" disability of
muscles:

> *\[T\]ype of injury.* Through and through or deep penetrating wounds
> by high velocity missile of small size or large missile of low
> velocity, with debridement or with prolonged infection or with
> sloughing of soft parts, intermuscular cicatrization.
>
> *History and complaint.* Service department record or other sufficient
> evidence *showing hospitalization for a prolonged period in service
> for treatment of wound of severe grade.* Record in the file of
> consistent complaint of cardinal symptoms of muscle wounds. *Evidence
> of unemployability because of inability to keep up with work
> requirements is to be considered, if present.*
>
> *Objective findings.* *Entrance and (if present) exit scars relatively
> large and so situated as to indicate track of missile through
> important muscle groups. Indications on palpation of moderate loss of
> deep fascia, or moderate loss of muscle substance or moderate loss of
> normal firm resistance of muscles compared with sound side Tests of
> strength and endurance of muscle groups involved (compared with sound
> side) give positive evidence of marked or moderately severe loss.*

38 C.F.R. § 4.56 (1992) (emphasis added). *Russell* provides that clear
and unmistakable error in a prior adjudication exists only if \"either
the correct facts, as they were known at the time, were not before the
adjudicator or the statutory or regulatory provisions extant at the time
were incorrectly applied. The claimant, in short, must assert more than
a disagreement as to how the facts were weighed or evaluated.\" 3
Vet.App. at 313. As to the application of regulation § 4.56, it is clear
that under that regulation the mere fact of debridement does not
establish entitlement to more than a \"moderate\" disability evaluation.
Rather, the adjudicator must consider all the factors set forth in the
regulations and make determinations based on the facts of the particular
case. Therefore, evidence of debridement alone is not sufficient to
demonstrate a clear and unmistakable error in the application of § 4.56
in the 1954 VARO decision.

Given these criteria and the regulatory \"factors to be considered,\"
and based upon a review of the evidence of record in the 1954 VARO
decision, it cannot be concluded that the VARO then misapplied the
applicable regulations in determining that the veteran\'s injury more
closely resembles the characteristics of the \"moderate\" category than
that of the \"moderately severe\" category. The evidence of record
adequately supports findings (1) that there were no residuals from the
debridement, (2) that the veteran recovered quickly, (3) that he
recovered with only minimal loss of mobility, and (4) that there is no
history of unemployability. The Court, therefore, holds that the
December 12, 1991, BVA decision finding that there was no clear and
unmistakable error committed in the March 8, 1954, VARO rating decision
establishing a 20% disability rating for the low back aspect of the
service-connected injury was not itself \"arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. . . .\"
*See* 38 U.S.C.A. § 7261(a)(3)(A) (West 1991). The Court is also
satisfied that the BVA decision meets the \"reasons or bases\"
requirements of 38 U.S.C.A. § 7104(d)(1) (West 1991). *See Russell,
supra; Gilbert,* 1 Vet.App. at 53-56. Although the BVA did not address
appellant\'s \"debridement\" argument, that failure is not prejudicial
in light of this Court\'s having done so, above. *See* 38 U.S.C.A. §
7261(b) (West 1991).

**III. CONCLUSION**

For reasons stated above, the Court AFFIRMS the BVA decision denying
entitlement, based on clear and unmistakable error in a rating decision
in March 1954, to a retroactive rating in excess of 20% for residuals of
gunshot wound of the low back involving Muscle Group XX.