Citation Nr: 0006555	
Decision Date: 03/10/00    Archive Date: 03/17/00

DOCKET NO.  98-00 520A	)	DATE
	)
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THE ISSUES

1.  Whether a June 17, 1956, decision of the Board of 
Veterans' Appeals was clearly and unmistakably erroneous.

2.  Whether an August 28, 1998, decision of the Board of 
Veterans' Appeals was clearly and unmistakably erroneous.


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Panayotis Lambrakopoulos, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1943 to January 
1946.  

This matter arises from the veteran's January 1998 motion for 
reconsideration of prior Board of Veterans' Appeals (Board) 
decisions.  On June 17, 1959, the Board denied a claim for 
benefits as a result of Department of Veterans Affairs (VA) 
hospitalization or treatment under 38 U.S.C.A. § 351 (1958) 
(changed to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999)) for 
paralysis of the left recurrent laryngeal nerve.  In March 
1996, the New Orleans, Louisiana, Regional Office (RO) 
awarded service connection under 38 U.S.C.A. § 1151 for 
paralysis, left recurrent laryngeal nerve, traumatic, with 
aphonia, which was evaluated as 60 percent disabling.  The 
effective date of the award was December 27, 1994, the date 
of the veteran's new claim.  The veteran disagreed with the 
effective date, and on August 28, 1998, the Board issued a 
decision denying the veteran's claim for an earlier effective 
date.  That decision did not involve the issue of clear and 
unmistakable error.  Now the veteran is seeking an earlier 
effective date on the basis of clear and unmistakable error 
in the Board's June 1959 and August 1998 decisions.


FINDINGS OF FACT

1.  The veteran underwent a left pneumonectomy at a VA 
medical facility in May 1956.  During that surgery, he 
suffered an "inadvertent injury" resulting in paralysis of 
his left vocal cord.  

2.  In June 1959, the Board denied a claim for benefits due 
to VA medical treatment for paralysis of the left recurrent 
laryngeal nerve.

3.  In March 1996, the RO awarded service connection for 
paralysis of the left recurrent laryngeal nerve with aphonia 
due to VA medical treatment, with an effective date of 
December 27, 1994.




CONCLUSIONS OF LAW

1.  The June 1959 Board decision denying service connection 
for paralysis of the left recurrent laryngeal nerve was 
clearly and unmistakably erroneous.  38 U.S.C.A. § 7111(a) 
(West 1991 & Supp. 1998); 64 Fed. Reg. 2139-41 (Jan. 13, 
1999), to be codified at 38 C.F.R. §§ 20.1400-20.1411.

2.  The motion for review of the Board's August 1998 decision 
that denied an effective date earlier than December 27, 1994, 
for the award of benefits based on VA medical treatment for 
traumatic paralysis of the left laryngeal nerve with aphonia 
is moot.  38 U.S.C.A. § 7111(a) (West 1991 & Supp. 1998); 64 
Fed. Reg. 2139-41 (Jan. 13, 1999), to be codified at 38 
C.F.R. §§ 20.1400-20.1411.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, an appellant must initiate an appeal by filing a 
notice of disagreement within one year from the date of 
notice of the result of the initial determination and 
complete the appeal process with the submission of a timely 
substantive appeal after the issuance of a statement of the 
case. 38 C.F.R. § 20.302 (1999). Absent such action, a rating 
determination is considered to be final and is not subject to 
review except upon a finding of clear and unmistakable error. 
38 C.F.R. § 3.105(a) (1999).  

Under 38 C.F.R. § 3.105(a), a prior decision must be reversed 
or amended where evidence establishes clear and unmistakable 
error.  Either the correct facts, as they were known at the 
time, were not before the adjudicator, or the statutory or 
regulatory provisions in effect at the time were incorrectly 
applied.  Olson v. Brown, 5 Vet. App. 430, 433 (1993).

The Board has original jurisdiction to determine whether 
clear and unmistakable error exists in a prior final Board 
decision. Such review may be initiated by the Board on its 
own motion or by a party to the decision. 38 C.F.R. § 20.1400 
(1999).  A party disagreeing with the Board's denial of a 
motion for revision based on clear and unmistakable error in 
a prior Board decision can appeal that determination to the 
Court.  38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1409(d) 
(1999).

A claim of clear and unmistakable error is not a claim or 
application for VA benefits.  Therefore, duties associated 
with such claims or applications are inapplicable, including 
notification under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 
1999) of the existence of evidence which might complete a 
claimant's application for benefits, the requirements of 
well-groundedness and the VA's duty to assist in the 
development of such claims.  64 Fed. Reg. 2139-41 (Jan. 13, 
1999), to be codified at 38 C.F.R. § 20.1411(c), (d).  In 
addition, neither the "benefit of the doubt" rule of 38 
U.S.C.A. § 5107(b), nor the provisions for reopening claims 
on the grounds of new and material evidence under 38 U.S.C.A. 
§ 5108 apply to clear and unmistakable error claims.  64 Fed. 
Reg. 2139-41 (Jan. 13, 1999), to be codified at 38 C.F.R. § 
20.1411(a), (b).  A clear and unmistakable error motion is 
not an appeal and therefore, with certain exceptions, it is 
not subject to the provisions of 38 C.F.R. Parts 19 and 20, 
which pertain to the processing and disposition of appeals.  
64 Fed. Reg. 2139-41 (Jan. 13, 1999), to be codified at 38 
C.F.R. § 20.1400.  Additionally, Board decisions which have 
been appealed to and decided by a court of competent 
jurisdiction and decisions on issues which have been 
subsequently decided by a court of competent jurisdiction are 
not subject to review on the basis of clear and unmistakable 
error in Board decisions.  64 Fed. Reg. 2139-41 (Jan. 13, 
1999), to be codified at 38 C.F.R. § 20.1400(b).

VA has promulgated regulations that define what constitutes 
clear and unmistakable error.  In pertinent part, the 
applicable regulations provide as follows:
 
§ 20.1403 Rule 1403. What constitutes clear and 
unmistakable error; what does not.

(a) General. Clear and unmistakable 
error is a very specific and rare kind 
of error. It is the kind of error, of 
fact or of 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. Generally either the correct 
facts, as they were known at the time, 
were not before the Board, or the 
statutory and regulatory provisions 
extant at the time were incorrectly 
applied.

(b) Record to be reviewed. - (1) 
General. Review for clear and 
unmistakable error in a prior Board 
decision must be based on the record and 
the law that existed when that decision 
was made.

. . .

(c) Errors that constitute clear and 
unmistakable error. To warrant revision 
of a Board decision on the grounds of 
clear and unmistakable error, there must 
have been error in the Board's 
adjudication of the appeal which, had it 
not been made, would have manifestly 
changed the outcome when it was made. If 
it is not absolutely clear that a 
different result would have ensued, the 
error complained of cannot be clear and 
unmistakable.

(d) Examples of situations that are not 
clear and unmistakable error.

(1) Changed diagnosis. A new 
medical diagnosis that 
"corrects" an earlier 
diagnosis considered in the 
Board decision.

(2) Duty to assist. The 
Secretary's' failure to 
fulfill the duty to assist.

(3) Evaluation of evidence. A 
disagreement as to how the 
facts were weighed or 
evaluated.

(e) Change in interpretation. Clear and 
unmistakable error does not include the 
otherwise correct application of a 
statute or regulation where, subsequent 
to the Board decision challenged, there 
has been a change in the interpretation 
of the statute or regulation.

§ 20.1404 Rule 1404. Filing and pleading 
requirements; withdrawal.

. . .

(b) Specific allegations required. The 
motion must set forth clearly and 
specifically the alleged clear and 
unmistakable error, or errors, of fact 
or law in the Board decision, the legal 
or factual basis for such allegations, 
and why the result would have been 
manifestly different but for the alleged 
error. Non-specific allegations of 
failure to follow regulations or failure 
to give due process, or any other 
general, non specific allegations of 
error, are insufficient to satisfy the 
requirement of the previous sentence. 
Motions which fail to comply with the 
requirements set forth in this paragraph 
shall be denied.

64 Fed. Reg. 2139 (Jan. 13, 1999), to be codified at 38 
C.F.R. §§ 20.1403, 20.1404 (1999).

A claim of "clear and unmistakable error" requires that 
there have been an error in the prior adjudication of the 
claim.  Russell v. Principi, 3 Vet. App. 310, 313 (1992).  
Such a claim requires that (1) the correct facts, as they 
were known at the time, were not before the adjudicator or 
the statutory or regulatory provisions applicable at the time 
were incorrectly applied; (2) 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; and 
(3) a determination that there was clear and unmistakable 
error must be based on the law and record that existed at the 
time of the prior adjudication in question.  Russell, 3 Vet. 
App. at 313-14.  "It is the kind error, of fact or law, that 
. . . compels the conclusion, to which reasonable minds could 
not differ, that the result would have been manifestly 
different but for the error."  Fugo v. Brown, 6 Vet. App. 
40, 43-44 (1993).  Clear and unmistakable error involves more 
than a claim that previous adjudications had improperly 
weighed and evaluated the evidence.  Russell, 3 Vet. App. at 
313.  There must be some degree of specificity as to what the 
alleged error is and persuasive reasons as to why the result 
would have been manifestly different but for the alleged 
error.  Fugo, 6 Vet. App. at 43-44.

In addition, VA's Office of the General Counsel has issued a 
precedential opinion that holds that the Board's application 
in a prior decision of a regulation that is subsequently 
invalidated does not constitute "obvious error" or "clear 
and unmistakable error" and does not provide a basis for 
reconsideration of that earlier Board decision.  VA GC Op. 
Prec. 25-95 (Dec. 6, 1995); see 38 U.S.C.A. § 7104(c) (West 
1991 & Supp. 1999) (Board is bound in its decisions by, inter 
alia, the precedential opinions of VA's General Counsel); 38 
C.F.R. § 19.5 (1999) (same).

The veteran was treated at a VA medical facility on several 
occasions in the early to mid-1950s for tuberculosis.  
Following treatment with medication, he underwent a left 
upper lobe lobectomy in September 1954.  According to a 
September 1957 final summary discharge report, the veteran 
then continued to receive anti-tuberculosis drug therapy at a 
VA hospital.  However, "[f]or some reason his anti-
tuberculosis drug therapy was then stopped" in February 
1955,  and soon thereafter, testing for tuberculosis was 
positive.  In March 1955, he was readmitted to a VA hospital 
for further treatment, this time to the Nashville, Tennessee, 
VA medical center.

Diagnostic procedures indicated that there was a residual 
cavitation in the apex of the left lower lobe which then 
occupied the left lower chest.  In July 1955, the veteran 
underwent surgery to remove a large wedge of the apex of the 
left lower lobe that contained a cavity.  He also underwent a 
partial thoracoplasty at this time.  Following this surgery, 
he received further drug therapy and sanatorial care.  

Subsequently, however, the veteran tested positive for 
tuberculosis again, and it was believed that the veteran had 
residual cavitation in the top of his left lower lobe.  In 
mid-May 1956, the veteran underwent further surgery, a left 
pneumonectomy; this is the surgery which forms the basis of 
the veteran's section 1151 claim.  According to the VA final 
summary discharge report, "the left pneumonectomy was 
completed following which the patient had a somewhat rocky 
time and developed a left recurrent laryngeal nerve paralysis 
from the inadvertent injury to the recurrent laryngeal nerve 
at the time of surgery."  Later VA medical records (from 
August 1956 and May 1957) reflect treatment for 
interarymetoid edema left, vocal cord paralysis without 
ulceration and difficulty with speech as a result of left 
vocal cord paralysis secondary to chest surgery."

In its June 1959 decision, the Board stated:

Consideration has been given contentions advanced 
by the veteran and in his behalf and the complete 
record of the pertinent period of hospitalization.  
Major surgery such as that performed in May 1956, 
even when done under the usual circumstances, 
involves a considerable degree of calculated risk.  
In this case, because of scarring and adhesions, 
residuals of prior chest surgery, even a greater 
surgical risk was involved.  It appears that 
despite the exercise of appropriate precautions 
and a high degree of professional skill, there was 
trauma to the left recurrent laryngeal nerve.  The 
fact that such trauma occurred does not, however, 
establish that there was carelessness, accident, 
lack of proper skill or error of judgment.  The 
operation is shown to have been performed in 
accordance with approved surgical practices and 
the residual nerve paralysis is not shown to be 
other than an unusual result of approved medical 
care properly administered.  The Board finds that 
the evidence does not establish that there was 
carelessness, negligence, accident, lack of proper 
skill or error of judgment on the part of any of 
the hospital personnel.  It is the decision of the 
Board that the veteran is not shown to have 
additional disability which was incurred as the 
result of hospitalization or treatment within the 
purview of Section 351, Title 38, U.S.C.

Pursuant to 38 U.S.C.A. § 1151, VA had promulgated a 
regulation, 38 C.F.R. § 3.358, which required that a claimant 
for benefits under section 1151 demonstrate that there was 
fault on VA's part in the incurrence or aggravation of an 
injury or disability due to VA hospitalization or treatment.  
In Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd sub 
nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 
513 U.S. 115 (1994), the Court invalidated the regulation on 
the ground that VA had improperly imposed a requirement of a 
showing of fault.  However, at the time of the Board's June 
1959 decision, the regulation was in effect.  As noted above, 
the Board's application in a prior decision of a regulation 
that is subsequently invalidated does not constitute 
"obvious error" or "clear and unmistakable error" and does 
not provide a basis for reconsideration of that earlier Board 
decision.  VA GC Op. Prec. 25-95 (Dec. 6, 1995); see 38 
U.S.C.A. § 7104(c) (West 1991 & Supp. 1999); 38 C.F.R. § 19.5 
(1999).  Since the applicable precedential opinion is 
binding, the Board must apply the version of 38 C.F.R. 
§ 3.358 that was in effect at the time of the Board's June 
1959 decision.  

At the time of the Board's June 1959 decision, 38 C.F.R. 
§ 3.358(c)(3) provided, in pertinent part, as follows:

Compensation is not payable for either the 
contemplated or foreseeable after results of 
approved medical or surgical care properly 
administered, no matter how remote, in the absence 
of a showing that additional disability or death 
proximately resulted through carelessness, 
negligence, lack of proper skill, error in 
judgment, or similar instances of indicated fault 
on the part of VA.  However, compensation is 
payable in the event of the occurrence of an 
"accident" (an unforeseen, untoward event), 
causing additional disability or death proximately 
resulting from VA hospitalization or medical or 
surgical care.

Thus, the version of the regulation in effect at the time of 
the Board's June 1959 decision involved an element of fault, 
and not merely causation.  Nevertheless, even applying the 
prior version of the applicable regulation (as well as the 
statute), the injury that the veteran sustained to his left 
laryngeal nerve that resulted in left vocal cord paralysis 
was at the very least the result of an "accident."  As 
acknowledged in the June 1959 decision, with regard to the 
May 1956 pneumonectomy, the Board stated that "it is not 
indicated that the left recurrent laryngeal nerve was 
visualized.  Postoperatively, the veteran's course was not 
unusual and it was only when hoarseness persisted that trauma 
to the left laryngeal nerve was considered."  Since the left 
laryngeal nerve was not visualized, at the very least, the 
injury to the veteran's left vocal cord and the resulting 
paralysis and aphonia were an accident.  See Look v. 
Derwinski, 2 Vet. App. 157, 164 (1992) (Board decision was 
clearly and unmistakably erroneous "under a correct 
application of the law as it previously existed, requiring 
fault," when Board ignored portion of regulation allowing 
compensation in the event of an "accident"); cf. Gardner, 1 
Vet. App. at 587 (in that case, VA Secretary argued that the 
prior version of the regulation had provided for compensation 
in cases of untoward and unforeseen accidents).  Statements 
to the contrary that the veteran accepted a degree of risk 
are conclusory and self-serving.  The regulation in effect at 
the time of the Board's June 1959 decision encompassed such 
circumstances as accidents.

The veteran also is seeking review of the Board's August 1998 
decision for clear and unmistakable error.  The purpose of 
such a motion, as with the motion for review of the June 1959 
decision, is to obtain an earlier effective date for the 
award of service connection for left vocal cord paralysis.  
Since the Board now has determined that the June 1959 
decision was clearly and unmistakably erroneous, review of 
the August 1998 decision would serve no purpose and is moot.



ORDER

The veteran's motion to revise a June 1959 Board decision on 
the basis of clear and unmistakable error is granted.  The 
veteran's motion to revise an August 1998 Board decision on 
the basis of clear and unmistakable error is denied as moot.


		
	JEFF MARTIN
Member, Board of Veterans' Appeals