Citation Nr: 0204066 Decision Date: 05/02/02 Archive Date: 05/14/02 DOCKET NO. 01-06 783 ) DATE ) ) THE ISSUE Whether a May 1984 decision of the Board of Veterans' Appeals, which denied a compensable rating for residuals of shrapnel wounds of the tip of the right thumb, should be revised or reversed on the grounds of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The veteran had active service from May 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2001 motion by the veteran alleging CUE in a Board decision issued in May 1984. FINDINGS OF FACT 1. The veteran's shrapnel wound injury to the right thumb was described as an asymptomatic 1-inch scar in service. Clinical records after service established a diagnosis of partial amputation through the ungual tuft of the distal phalanx of the right thumb with tenderness. 2. In a May 1984 decision, the Board denied a compensable rating for residuals of shrapnel wounds of the tip of the right thumb. The Board committed CUE in this decision by relying on its own unsubstantiated medical opinion in concluding that the only residual of the wound was asymptomatic scarring. 3. At the time of the May 1984 Board decision, the veteran established his right to entitlement to a 20 percent rating for partial amputation through the ungual tuft of the distal phalanx of the right thumb under Diagnostic Code 5152, and a 10 percent rating for tender and painful scarring of the right thumb under Diagnostic Code 7804. CONCLUSIONS OF LAW 1. The Board's May 1984 decision, which denied a compensable rating for residuals of shrapnel wounds of the tip of the right thumb, involved CUE. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. § 20.1400 (2001). 2. At the time of the May 1984 Board decision, the veteran was entitled to a 20 percent rating for partial amputation through the ungual tuft of the distal phalanx of the right thumb, and a separate 10 percent rating for tender and painful scarring of the right thumb. 38 U.S.C. § 1155 (1983); 38 C.F.R. § 4.71a, Diagnostic Code 5152 (1983); 38 C.F.R. § 4.118, Diagnostic Code 7804 (1983). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2001, the veteran (moving party) filed a request for revision of a May 1984 Board decision, which denied a compensable rating for residuals of shrapnel wounds of the tip of the right thumb, on the grounds of CUE. Essentially, he contends that the Board committed CUE by failing to: (1) assign a 20 percent rating for amputation of the right thumb through the distal phalanx under Diagnostic Code 5152 and (2) assign a 10 percent rating for painful and tender scarring of the right thumb under Diagnostic Code 7804. The law provides that a decision by the Board is subject to revision or reversal on the grounds of CUE. 38 U.S.C.A. § 7111 (West Supp. 1999). CUE is defined as a very specific and rare 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. 38 C.F.R. § 20.1403(a) (2001). Challenges to Board decisions on the basis of CUE are "based on the record and the law that existed when [the challenged] decision is made." 38 C.F.R. § 20.1403(b)(1) (2001). See Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000). The claimant has the burden of showing that an "outcome-determinative error occurred" with regard to the prior adjudication. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999). Briefly summarized, the evidence of record at the time of the Board's May 1984 decision included service medical records (SMR's) which included the veteran's declaration of being "RIGHT HANDED" on his April 1967 induction examination. On May 5, 1968, he incurred a shrapnel wound injury to the right thumb and a gunshot wound injury to the left hand. His initial treatment consisted of "[d]ebridement of wound of extremities, right and left hand" and "[s]uture of wound of extremities, left hand." Physical examination findings, dated on May 5, "1967," describe "[s]uperficial shrapnel stuck in skin" of right hand. An evacuation tag describes the injury as "Frag wd Rt hand Superficial." His subsequent inpatient treatment consisted of hand soaks, pain medication and rest. His left-hand injury required removal of sutures, but the clinical records covering his course of stay made no mention of any further treatment for the right thumb. He was discharged and returned to duty on May 16, 1968 with notations of "no artery or nerve involvement." His separation examination, dated in April 1970, only noted a "1 scar [of the] right thumb" which was "NCD" (not considered disabling). In an Application for Compensation or Pension received in May 1970, the veteran filed a claim for service connection for "[s]hrapnel fragment wounds, both forearms." His August 1970 VA examination reflected his report that his right hand injury had healed without complications. He had complaints of pain and aching relative to his left hand only. His physical examination, which noted "multiple small scars" of the left and right hand, resulted in a "normal" clinical evaluation. He was given diagnoses of gunshot wounds (GSW) of the left hand and shrapnel wounds of both hands and left arm. By means of an August 1970 rating decision, the RO granted service connection for residuals of "shrapnel wounds to both hands and left arm" and assigned an initial noncompensable evaluation. The Board, in a March 1972 decision, upheld the RO's initial noncompensable rating by finding that "[t]he primary residuals of gunshot wounds are several small scars which are not shown to be objectively symptomatic." In November 1982, the veteran filed a VA Form 21-4138 requesting an increased rating for his right hand disability. At that time, he stated that he was receiving VA treatment for "nerve involvement and possible arthritis in both of my hands." He complained of difficulty with grasping objects with pain and tenderness of the right thumb which was not alleviated by Motrin and/or Cortisone. His VA clinical records, dated that same month, first document a "partial amputation on the R thumb (about 1/2 with good cosmetic scar)." A possible neuroma type problem of the right thumb was also noted. On VA orthopedic examination in February 1983, the veteran complained of pain and tenderness at his wound sites worsened with cold weather. He further complained of an inability to grasp objects with weakness and fatigability on use. His physical examination revealed a 1/2 inch shortening of the right thumb, including the nail bed. His nail was moderately curved down. Close inspection revealed an inconspicuous "fish mouth" scar close to the end of the nail so that the volar skin of the distal segment of the thumb was unscarred except for extensions of the surgical scar at each side. There was tenderness to pressure on each side of the thumb, presumably over the nerve bundles. There was no hypesthesia and no abnormal sweating or coldness. The interphalangeal joint lacked about 20 degrees of flexion when compared to the left thumb. An x-ray examination revealed "amputation through the ungual tuft of the distal phalanx of the thumb." Otherwise, there were no abnormal bone or joint changes. He was given a diagnosis of residuals of injury to tip of right thumb. The law extant at the time of the Board's May 1984 decision warranted a 10 percent rating for a scar which was tender and painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1983). A Note following Diagnostic Code 7804 stated as follows: The 10 percent rating will be assigned, when the requirements are met, even though the location may be on tip of finger or toe, and the rating may exceed the amputation value for the limited involvement. Furthermore, a 20 percent rating was warranted for amputation of the thumb, at distal joint or through distal phalanx, on either the major or minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5152 (1983). A higher still rating required amputation of the thumb at the metacarpophalangeal joint or through the proximal joint. Id. In the May 1984 decision, the Board denied the veteran's claim for an increased rating for residuals of injury to tip of right thumb by finding that "[t]he present residuals of shrapnel wounds to the right hand are asymptomatic scars." In so deciding, the Board specifically mentioned the veteran's contentions that his wound residuals included "constant pain associated with damage to the bones, muscles, and nerves of the hands verified by the medical records." The Board also considered his report of "pain, weakness, and impaired use of the right thumb." Presumably, the Board concluded that the veteran's partial right thumb amputation with tender and painful scarring was not related to his initial in-service shrapnel wound injury. The Board, however, did not cite any medical opinion, or refer to intercurrent injury, to support this conclusion. The Board did not give any consideration to applying the amputation rule set forth in Diagnostic Code 5152. It is also a well-settled principle that the Board cannot rely on its "own unsubstantiated medical conclusion(s)" involving questions of medical diagnosis or etiology. Colvin v. Derwinski, 1 Vet. App. 171 (1995). At the time of the May 1984 Board decision, there was no objective evidence, such as x-ray examination, which could exclude the possibility that the veteran's partial thumb amputation occurred in service. There was also no evidence of intercurrent injury to explain the disparity between the veteran's in-service and post- service descriptions of his right thumb disability. Therefore, the Board must hold that it committed CUE by apparently relying on its own unsubstantiated medical opinion in concluding that the veteran's medically established partial right thumb amputation with tender and painful scarring was not related to his initial in-service shrapnel wound injury. This was an "outcome-determinative" factual error which precluded consideration of an increased rating under Diagnostic Codes 5152 and 7804. Therefore, the veteran's motion alleging CUE in a Board decision issued in May 1984 is granted in full. A 20 percent rating for partial amputation through the ungual tuft of the distal phalanx of the right thumb is granted pursuant to Diagnostic Code 5152 in effect at the time of the 1984 decision. A separate 10 percent rating for tender and painful scarring of the right thumb is also granted pursuant to Diagnostic Code 7804 in effect at the time of the 1984 decision. ORDER The veteran's motion alleging CUE in a Board decision issued in May 1984 is granted. A 20 percent rating for partial amputation through the ungual tuft of the distal phalanx of the right thumb is granted. A 10 percent rating for tender and painful scarring of the right thumb is granted. C.W. Symanski Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597B that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? In the section entitled "Appeal to the United States Court of Appeals for Veterans Claims," you are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," you no longer need to have filed a "notice of disagreement ... that led to the decision the Board has just reviewed for CUE ... on or after November 18, 1988" as a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.