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

[No. 96-114]{.smallcaps}

[Alfred L. Brown, 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 February 12, 2002 )

*Gary L. Beaver*, of Greensboro, North Carolina, was on the pleadings
for the appellant.

*Tim S. McClain*, General Counsel; *Ron Garvin*, Assistant General
Counsel; *Carolyn F. Washington*, Deputy Assistant General Counsel; and
*Ralph G. Davis*, all of Washington, D.C., were on the pleadings for the
appellee.

Before KRAMER, *Chief Judge*, and STEINBERG and GREENE, *Judges*.

KRAMER, *Chief Judge*: The appellant, Alfred L. Brown, appeals through
counsel a February 8, 1996, decision of the Board of Veterans\' Appeals
(BVA or Board) that denied a claim that clear and unmistakable error
(CUE) was committed when his disability rating of 100% was reduced to
70%, effective July 20, 1946. Record (R.) at 64. This appeal is timely,
and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). The parties have filed briefs and pleadings. For the reasons
that follow, the Court will affirm the BVA decision.

**I. FACTS**

The appellant served on active duty in the U.S. Army from May 1944 to
July 1945. R. at 140. His service medical records (SMRs) show that on
March 6, 1945, he was severely wounded in combat when an explosive shell
fragment penetrated his right thorax and abdomen, perforating his
diaphragm and liver, destroying his right adrenal gland, lacerating his
right kidney, and fracturing his right seventh rib. R. at 83-86, 92,
100, 105, 123. By March 17, 1945, his recuperation course was
satisfactory, but he had developed an acute abscess near his diaphragm
and his convalescence was expected to be prolonged. R. at 111. In July
1945, the appellant\'s wound was completely healed but he was still
being treated for the abscess, and he was given a medical discharge from
the service later that month. R. at 121, 128, 134-35, 140, 142. The
appellant shortly thereafter filed a claim with a VA regional office
(RO) for pension or compensation. R. at 145-48. In a July 1945 decision,
the RO awarded, effective the day after his discharge, a 100% disability
rating for that chest and abdomen shell wound (R. at 154, 158-59)
pursuant to Extension No. 6 - Schedule for Rating Disabilities, 1933,
which provided temporary ratings (for a total of one year) for certain
disabilities, including a 100% rating for recent, unhealed injuries with
continued infections (R. at 1321-23).

In July 1946, the appellant had surgery at a VA hospital for a hernia in
the right groin area. R. at 172, 181. The record includes a VA medical
report of an examination that was performed at that time. R. at 183-89.
That report included no discussion of the appellant\'s kidney or adrenal
condition and noted that \"\[m\]uscular development is good \[and
t\]here is no evidence of atrophy of muscles.\" R. at 187. In October
1946, VA apparently canceled a request for physical examination
regarding the appellant\'s chest and abdomen wounds. R. at 175. Several
days later, VA notified the appellant that it had authorized a medical
examination and that the appellant would be notified of the date and
time at a later date (R. at 179), but there is no evidence that such an
examination was completed. In a February 12, 1947, decision, the RO
granted the appellant service connection for residuals of the
penetrating shell wound, including injuries to the pleural cavity,
liver, and muscle group (MG) 21, and assigned, as of July 20, 1946,
ratings of 40%, 30%, and 20%, respectively. R. at 192. The appellant\'s
combined rating was 70% at that time. *Id*.

A February 12, 1947, VA request for physical examination contained
several handwritten notations, including one to \"proceed . . .
12-7-50.\" R. at 194. According to an August 1947 VA hospital final
summary report, the appellant in July 1947 was again treated for a right
groin hernia. R. at 206-07. That report noted that the appellant had had
multiple shrapnel wounds of the chest and abdomen, with removal of the
ninth rib and penetration wounds to the right lung, liver, kidney, and
diaphragm. R. at 206. An August 1947 RO decision stated that the
hospitalization report \"does not alter current rating which is
confirmed and continued.\" R. at 209. The appellant was apparently
hospitalized in March 1949 due to the shrapnel wound residuals. R. at
229, 239. In January 1951, the RO again confirmed and continued the 70%
combined rating based on a December 1950 report of a non-VA medical
examination. R. at 255-58. A January 1951 VA request for physical
examination was canceled as of June 1951. R. at 268.

In April 1981, the appellant stated that he had not been given a
competent and complete medical examination and requested a 100% rating.
R. at 467. In an August 1981 RO decision, the appellant was awarded
service connection for his kidney and adrenal gland injuries and was
assigned noncompensable ratings for both, effective May 1981. R. at
500-01. In February 1982, the RO granted service connection for three
additional residuals of the shell wound, including injuries to the right
adrenal gland, right kidney, and MG 19. R. at 544-49. The RO assigned a
rating of 10% for the MG 19 injury, effective September 1980. The RO
also determined that the kidney and adrenal injuries were
noncompensable, effective May 1981, based on analogy to 38 C.F.R.
§ 4.115b, Diagnostic Code (DC) 7502 (chronic nephritis) (1981), and
38 C.F.R. § 4.119, DC 7910 (hyperadrenia) (1981), respectively. R. at
549. (Chronic nephritis is \"active and slowly progressive parenchymal
\[(meaning pertaining to \"the essential elements of the organ\")\]
renal disease.\" [Dorland\'s Illustrated Medical Dictionary]{.smallcaps}
1108, 1234 (28th ed. 1994) \[hereinafter [Dorland\'s]{.smallcaps}\].
Hyperadrenia is also known as hyperadrenalism, which is \"abnormally
increased secretion of adrenal hormones.\" [Dorland\'s]{.smallcaps} at
[791]{.smallcaps}.)

In a May 1985 decision, in response to the appellant\'s questioning of
the effective dates assigned in 1982 (R. at 795), the RO assigned an
earlier effective date of July 20, 1946 (the date that the appellant\'s
temporary 100% rating had expired), for the service-connected adrenal
gland, kidney, and MG 19 injuries. The RO stated that its basis for
assigning that earlier date was that it should have awarded service
connection for those residuals in 1947. R. at 800. The RO then stated
that, because the appellant\'s combined rating would have been 70% from
1947 to date in any event, \"there is no change in monetary benefits.\"
R. at 801. The appellant did not appeal this decision.

In March 1991, the appellant filed a statement in which he argued that
had the RO in 1947 considered all of his service-related injuries he
would have been rated at 100%. R. at 1002-03. In a September 1991 BVA
decision, the Board noted that the appellant had not properly developed
for appellate review his claims of CUE (as to the RO decision that had
not considered all of his service-related injuries); the Board then
referred those CUE claims to the RO for appropriate consideration. R. at
1021, 1031-32. In November 1991, the RO, taking into consideration the
appellant\'s March 1991 statement, denied a CUE claim as to a denial of
a rating of total disability based on individual unemployability. R. at
1038-42. In April 1993, the Board (1) characterized the claim as one for
CUE in the 1947 RO decision that had reduced the appellant\'s rating
from 100% to 70% and (2) denied that CUE claim. R. at 1125. The BVA
Deputy Vice Chairman granted reconsideration of that BVA decision (R. at
1157-58), and in February 1994, the Board determined that, although the
RO had erred in 1947 in not applying the 1945 edition of the Veterans\'
Administration (now the Department of Veterans Affairs) *Schedule for
Rating Disabilities* \[hereinafter 1945 Rating Schedule\], an
application of that schedule would not have changed the appellant\'s 70%
combined rating (R. at 1168-70). The appellant appealed to this Court,
which in 1995 granted a joint motion to vacate the February 1994 BVA
decision and remand the claim. *Brown v. Brown*, U.S. Vet. App. No.
94-153 (Apr. 7, 1995) (order).

In the February 1996 BVA decision on appeal, the Board denied the CUE
claims. R. at 64. The appellant appealed to this Court, and on
February 20, 1998, by single-judge memorandum decision, this Court, in
reliance on *Dittrich v. West*, 163 F.3d 1349 (Fed. Cir. 1998), and
*Donovan v. West*, 158 F.3d 1377 (Fed. Cir. 1998), affirmed that BVA
decision on the ground, inter alia, that the 1947 and 1985 RO decisions
had been subsumed by later BVA decisions. *Brown v. West*, U.S. Vet.
App. No. 96-114 (Feb. 20, 1998). The appellant appealed to the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit), which
vacated this Court\'s decision and remanded the case for consideration
of \"whether the RO correctly rated \[the appellant\'s\] injuries under
the 1945 rating schedule,\" *Brown (Alfred) v. West*, 203 F.3d 1378,
1381-82 (Fed. Cir. 2000). After the case was returned to this Court for
disposition, the appellant, on January 14, 2002, filed a motion to
expedite the Court\'s decision in this case.

**II. ANALYSIS**

Preliminarily, the Court notes that by holding that later BVA decisions
did not subsume the 1947 and 1985 RO decisions, the Federal Circuit has
clarified that the present state of the case law is that a later BVA
decision\'s delayed subsuming of an RO decision occurs only where the
Board decided the same issue that the RO decided and where the RO
decision and BVA review were based on the same evidentiary record.
*Brown*, 203 F.3d at 1381-82; *see also* *Dittrich* and *Donovan*, both
*supra*. The Court also notes that the Federal Circuit\'s February 18,
2000, opinion did not vacate entirely this Court\'s February 20, 1998,
memorandum decision but only that part of this Court\'s decision that
erred \"in holding that \[the appellant\] is foreclosed from raising
\[the claims as to whether the RO correctly rated his injuries under the
1945 Rating Schedule\] in the current proceeding,\" *Brown*, 203 F.3d at
1382. The Court will therefore reconsider those CUE claims only.

A prior RO decision must be reversed or revised where evidence
establishes 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*). \"In order for there to be a valid claim of \[CUE\], . . .
\[t\]he claimant, in short, must assert more than a disagreement as to
how the facts were weighed or evaluated.\" *Russell*, 3 Vet.App. at 313.
That is because, \"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, ipso facto, clear and unmistakable.\"
*Fugo v. Brown*, 6 Vet.App. 40, 43-44 (1993). On appeal of a 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; *see also
Beyrle v. Brown*, 9 Vet.App. 377, 381-84 (1996); *Mason v. Brown*,
8 Vet.App. 44, 52-53 (1995).

In essence, the appellant contends that he is entitled to a rating above
70%, effective July 1946, on the ground that CUE was committed in the
May 1985 RO decision, which had determined that the RO had committed
error in the February 1947 decision (by not awarding service connection
for the appellant\'s kidney, adrenal-gland, and MG 19 disabilities) but
had determined that the error did not affect the appellant\'s 70%
combined rating and his monthly monetary benefits. The CUE claims
challenge the 1985 RO decision\'s application of the 1945 Rating
Schedule to the appellant\'s residuals of the right adrenal gland, right
kidney, and MG 19 injuries at the time of the 1947 RO decision. In light
of that fact, the citations to the DCs in the following analysis are to
that 1945 Rating Schedule (R. at 1245-78). In addition, any reference to
the 1985 RO decision denotes the 1947 RO decision as amended by the 1985
RO decision.

A. Right Adrenal Gland

The appellant asserts that in 1985 the RO erred in applying DC 7910
(hyperadrenia) (R. at 1277) as analogous to loss of an adrenal gland,
the appellant\'s injury, because loss of an adrenal gland could not
reasonably create excess functioning of that gland. June 2, 2000, Brief
(Br.) at 16-18. Based on that assertion, the appellant argues that the
Board also erred in applying DC 7910 and instead should have applied DC
7911 (hypo-adrenia or Addison\'s disease) (R. at 1275) or DC 7500
(removal of one kidney) (R. at 1273), which would have increased the
appellant\'s combined rating. June 2, 2000, Br. at 16. (Hypoadrenia is
also known as hypoadrenalism, which is \"abnormally diminished activity
of the adrenal gland, as in Addison\'s disease.\"
[Dorland\'s]{.smallcaps} at 803.) The Court notes that it appears that
the appellant has raised this argument for the first time on appeal.
*See Crippen v. Brown*, 9 Vet.App. 412, 418 (1996). However, even if he
had raised this issue to the Board, for the following reasons he could
not prevail.

In the February 1996 BVA decision, the Board concluded that the
application of DC 7911, rather than DC 7910, would not have made a
difference in the outcome of the decision because there was no evidence
that the appellant in 1947 had symptoms of reduced functioning of the
adrenal gland. R. at 45. The Court agrees with the Board on this point.
Hence, the Court concludes that in determining that the application of
DC 7911 would not have manifestly changed the outcome of the decision,
the Board was not arbitrary.

Although the outcome of the case would have been different if the Board
had applied DC 7500, the record on appeal and the 1945 Rating Schedule
do not support the conclusion that in its 1996 decision, the Board\'s
application of DC 7911 instead of DC 7500 was arbitrary. Under the 1945
Rating Schedule, the application of analogous ratings is governed by
General Policy in Rating Disability § 20, which permits analogous rating
where the \"functions affected . . . and symptomatology are closely
analogous\" (R. at 1252). Under § 20, the choice of DC 7500, specific to
the loss of a kidney, is not an obvious or possibly even acceptable
choice because the functions of the kidney and the adrenal gland are not
the same and the symptomatology of decreased functioning due to loss of
the adrenal gland is not \"closely analogous\" to the symptomatology of
decreased function due to loss of the kidney. *See*
[Dorland\'s]{.smallcaps} at 88, 102, 478, 529, 607, 795, 803, 810, 882,
1175, 1778; [Webster\'s Medical Desk Dictionary]{.smallcaps} 14, 216
(1986)*.* Indeed, the Court notes that the only relationship between the
kidney and the adrenal gland is location, not function. On the other
hand, DC 7911 is based on the symptomatology that result from the
diminished functioning of the adrenal glands. The Court concludes that
pursuant to § 20 the Board did not act arbitrarily when it analogized
the loss of an adrenal gland to the diminished functioning of the same
organ pursuant to DC 7911.

B. Muscle Group 19

The appellant asserts that the RO committed CUE as to the 1985 RO
decision by not affording him an examination as to his MG 19 injury.
June 2, 2000, Br. at 22. The Court notes that in 1982 the RO rated the
appellant\'s MG 19 residuals 10% disabling (R. at 549), and in 1985, the
RO made that rating effective as of July 1946 (R. at 801). The only
relevant medical evidence of record at the time of the 1947 RO decision
was a July 1946 report that stated that the appellant\'s \"\[m\]uscular
development is good \[and t\]here is no evidence of atrophy of
muscles.\" R. at 187. Assuming that an adequate examination was required
but not provided in this case, the appellant has not shown that an
examination would have provided the necessary medical evidence to change
manifestly the outcome of the 1985 RO decision. *Russell*, 3 Vet.App. at
313‑14. In any event, the Court notes that the failure in any duty to
assist, such as to provide an adequate medical examination, cannot
constitute a basis for CUE. *See Hazan v. Gober*, 10 Vet.App. 511,
522‑23 (1997) (following *Caffrey v. Brown*, 6 Vet.App. 377, 383-84
(1994)). The Court makes no determination as to any claim of \"grave
procedural error\" as defined by the Federal Circuit in *Hayre v. West*,
188 F.3d 1327 (Fed. Cir. 1999), *on remand*, *Hayre v. Principi*,
15 Vet.App. 48 (2001), *appeal docketed*, No. 01-7086 (Fed. Cir.
July 16, 2001), because no such claim has been presented here or to the
Board.

C. Right Kidney

The appellant contends that the Board in its decision on appeal erred
when it applied 38 C.F.R. § 4.31 (1994) and found that the RO in 1985
did not err in concluding that a noncompensable rating was appropriate
for the appellant\'s right-kidney residuals. June 2, 2000, Br. at 25. He
argues that he should have been assigned a 10% rating under DC 7502
(chronic nephritis) (R. at 1273), which provides a minimum rating of
10%, and that that rating would have increased his combined rating.
June 2, 2000, Br. at 26.

The Board in its February 1996 decision stated:

> A current regulation allows the assignment of a zero percent rating
> when the requirements of a compensable rating are not met and a zero
> percent rating is not provided under the pertinent diagnostic code.
> 38 C.F.R. § 4.31 (1994). It appears that this provision was not part
> of the 1945 Rating Schedule in February 1947. However, since none of
> the criteria for a compensable rating under \[DC\] 7502 appears to
> have been met based on the evidence before the RO in February 1947, it
> was reasonable for the RO to assign a noncompensable rating.

R. at 45. Although the Board does not appear to have applied
specifically § 4.31 to this claim, the Board\'s decision was based on
the idea that a noncompensable rating was available but included no
legal authority for such a determination. R. at 45. The version of
§ 4.31 cited to by the Board provides:

> **§ 4.31 Zero percent evaluations.**
>
> In every instance where the schedule does not provide a zero percent
> evaluation for a diagnostic code, a zero percent evaluation shall be
> assigned when the requirements for a compensable evaluation are not
> met.

38 C.F.R. § 4.31 (1994).

As previously noted, \"a determination that there was CUE must be based
on the record and law that existed at the time of the prior adjudication
in question.\" *Damrel*, 6 Vet.App. at 245. Regulatory § 4.31 (1994)
does not appear to have a direct antecedent in the 1945 Rating Schedule.
Nonetheless, the following regulation was applicable to the appellant\'s
claim in 1947:

> § 2.1158 Rating of noncompensable disabilities under 1925 and 1933
> schedules. \* \* \*
>
> \(b\) For the purposes of the 1933 and 1945 schedules, a disability
> under any diagnostic classification which does not meet the minimum
> rating schedule standard under that classification will be rated as no
> percent, except for purposes of Civil Service preference, in which
> event an evaluation of less than ten percent may be made.

38 C.F.R. § 2.1158(b) (1946 Suppl.). This 1947 regulation provides, as
does § 4.31 (1994), for a noncompensable rating where the disability
does not meet the minimum criteria of the applicable DC. The appellant
has not argued that in 1947 his right-kidney condition satisfied the
minimum criteria for a 10% rating under DC 7502. Therefore, the Court
concludes that, although the Board\'s reasoning was flawed, the Board\'s
ultimate determination that there was no CUE as to the right kidney
noncompensable rating was not arbitrary.

D. Miscellaneous

The Court notes 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 is without
jurisdiction to review Secretary\'s exercise of 38 U.S.C. § 503(a)
equitable-relief discretion). However, the appellant is 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); *Zimick v. West*, 11 Vet.App.
45, 50-51 (1998); *Moffitt*, 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).

**III. CONCLUSION**

Upon consideration of the foregoing, the Court holds that the BVA
decision is not \"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,\" 38 U.S.C. § 7261(a)(3)(A). The
Board\'s statement of reasons or bases, taken as a whole, showed
adequate consideration of the law and facts applicable to these CUE
claims. *See Damrel*, 6 Vet.App. at 245; *Russell*, 3 Vet.App. at
313-14. Accordingly, the February 8, 1996, BVA decision is AFFIRMED. As
to the appellant\'s January 14, 2002, motion to expedite the Court\'s
decision, the Court denies that motion as moot.