Citation Nr: 0306956 Decision Date: 04/10/03 Archive Date: 04/14/03 DOCKET NO. 00-06 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for service-connected residuals of a shell fragment wound of the left (minor) wrist and forearm, currently rated as 20 percent disabling. 2. Whether the May 1971 rating decision which did not establish a separate 10 percent rating for scars may be reversed or amended on the basis of clear and unmistakable error. 3. Entitlement to an effective date earlier than November 19, 1999, for a 10 percent rating for left wrist and forearm scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from February 1969 to February 1971. This appeal arises from a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that established entitlement to a separate 10 percent evaluation for a tender scar of the left wrist and forearm, effective from December 18, 1999. The decision denied an increased rating for residuals of a shell fragment wound (SFW) of the left wrist and forearm, which had been rated 20 percent disabling since February 1971. The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. The veteran testified before an RO hearing officer in June 2000. At that hearing, he withdrew his appeal for a higher disability rating for his service-connected scars; however, he raised the issue of clear and unmistakable error (hereinafter referred to as CUE) in a May 1971 rating decision in conjunction with a claim for an earlier effective date for the 10 percent rating for scars. In March 2001, the Board remanded the claim for an increased rating for additional development. In that remand, the Board referred to the RO the claims of CUE in a May 1971 rating decision and for an earlier effective date for a scar rating. In a May 2002 decision, the RO granted an earlier effective date of November 19, 1999, for a compensable rating for a scar of the left wrist and forearm. In a February 2003 SOC, the RO found no CUE in the rating decision of May 1971. FINDINGS OF FACT 1. Residuals of shell fragment wounds of the left hand and wrist include moderately severe paralysis manifested by numbness and paresthesias in the palm, thumb, index, and long fingers; complaint of severe pain on use; and weakness of finger strength and grip strength. 2. In an unappealed May 1971 rating decision, the RO did not grant a separate 10 percent rating for service-connected scars. 3. Evidence before the RO at the time of the May 1971 rating decision could reasonably have led to denial of a compensable rating for service-connected scars. 4. The RO received a request for an increased rating for service-connected shell fragment wounds of the left hand and wrist on November 19, 1999. 5. No evidence from which it is factually ascertainable that an increase in severity of the scars had occurred was received with a one-year period prior to November 19, 1999. CONCLUSIONS OF LAW 1. The criteria for a 40 percent schedular rating for residuals of shell fragment wounds of the left (minor) hand and wrist are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2002), 4.73, Diagnostic Code 5307 (2002), §§ 4.124, 4.124a, Diagnostic Code 8512 (2002). 2. The May 1971 RO rating decision may not be reversed or amended on the basis of CUE. 38 C.F.R. § 3.105(a) (2002). 3. An effective date earlier than November 19, 1999, is not warranted for a separate 10 percent schedular rating for left hand and wrist scars. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. § 3.400 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating A. Factual Background The veteran's DD-214 reflects that he was awarded the Purple Heart for wounds received in Vietnam in 1969 when fragments from a B-40 rocket entered the left wrist. It appears that the records of immediate medical treatment are missing. A May 1970 evaluation reflects that the wounds over the base of the left thumb radially and proximal aspect of radial wrist region were well healed. A thumb scar was tender. A foreign body was palpated over the dorsal radial region. Range of motion was good but soreness was felt on pressure over the metacarpal phalangeal joint. There was hypoesthesia over the radial nerve distribution. The impression appears to be MFW (multiple fragment wound) of left wrist with contusion and interrupted dorsal branch of the radial nerve; and, traumatic arthritis, early, left thumb MP (metacarpal phalangeal) joint. In February 1971, the veteran requested service connection for a fragmentation wound in the left hand. It was reportedly numb at that time. An April 1971 VA examination report reflects complaint of pain and numbness in the wrist and complaint of sensitive scars, one over the radial side of the left forearm proximal to the wrist, and another over the left first carpometacarpal joint. In the musculoskeletal portion of the report, the examiner noted that the first through third left fingers were also numb. No muscle atrophy, normal active and passive range of motion in all joints, including normal pronation and supination, were noted. The examiner noted normal, symmetrical reflexes and normal sensory system, except numbness as described above, with normal skin in numbed areas. The diagnoses included sensitive skin scars of the left forearm and area of the first left carpometacarpal joint; partial lesion of cutaneous branches of left radialis nerve with loss of sensory dorsal aspect of 1, 2, and 3 left fingers; and, status post shrapnel injury left forearm. An April 1971 VA X-ray showed two foreign bodies in the left wrist area. In a May 1971 rating decision, the RO granted service connection for residuals of shell fragment wound of the left wrist and forearm. The RO assigned a 20 percent rating under Diagnostic Code 8512, on the basis of mild sensory deficit of the left radialis nerve. The decision notes that there is evidence of sensitive scars, but does not mention consideration of a separate rating for the scars. The decision also mentions that some service medical records were lost. The RO sent a letter to the veteran on June 3, 1971, notifying him of the award of service connection; however, the letter does not reflect whether he was sent a copy of the rating decision, whether he was given notice of his appeal rights or of his right to have a hearing, or whether he had appointed a representative and, if so, whether that representative was also notified of the decision. In May 1975, the veteran requested an increased rating. He submitted a medical report reflecting moderate nerve dysfunction and moderate dysfunction due to residuals of tendon injury. A July 1975 VA X-ray showed a normal left forearm and hand. According to a July 1975 VA special orthopedic evaluation report, previous examinations had found sensitive skin scars with paresthesias attributed to the left radial nerve. During the examination, the veteran reported paresthesias on the left thumb and next two fingers. He reported that the scars remained tender to touch. The examiner noted that a 1- inch scar on the radial aspect of the forearm and another 1- inch scar on the dorsal aspect of the metacarpal phalangeal joint had almost disappeared. There was no evidence of adhesion and so the examiner deemed both scars to be asymptomatic. The examiner noted that there was no evidence of weakness, muscle atrophy, deficit, or wasting. All joints had full range of motion. The functional impairment was confined to the subjective complaints of sensitive scars and paresthesias in the fingers with no other evidence of nerve damage. The diagnosis was residuals of shrapnel injuries of the left thumb and left distal forearm. In an August 1975 rating decision, the RO denied an increased rating. The RO notified the veteran and his representative of that decision and of his appeal rights and rights to a hearing in an August 1975 letter. According to a February 1976 VA special orthopedic evaluation report, the veteran reported that his left arm repeatedly gave out at work. He reported numbness, pain, and tingling from the forearm to the fingers. The examiner noted that the shrapnel had entered on the lateral side of the left forearm over the tendon of the extensor of the thumb at its musculo- cutaneous junction. The second fragment entered over the first metatarsal at its proximal end. The veteran reported that metal had been surgically removed and that a cast was placed subsequent to that. After the cast was removed, the current symptoms had persisted. The veteran complained that the hand gave out after about 5 minutes of working. The examiner noted no evidence of muscle atrophy. Pulses and ranges of motion were excellent. All muscles had full power. The only pathology seen was the two small scars. The examiner felt that the subjective complaints were not explainable. X-rays confirmed a small foreign body in the soft tissue dorsal to the distal third of the left wrist. In February 1976, the veteran also underwent a special VA neurology examination. The examiner noted that the girth of the left forearm was 1 cm less than the right. He had normal strength on the left, but he did not sustain his resistance. Hyperpathia was detected in the distribution of the left median nerve, excluding the 4th and little fingers. Continued stimulation produced a burning sensation. Reflexes were normal. The impression was partial median nerve dysfunction, manifested by pain and hyperpathia. An EMG was recommended. In April 1976, the RO again denied an increased rating. The RO notified the veteran and his representative of that decision and of his appeal rights and right to a hearing in an April 1976 letter. The veteran did not appeal. In March 1979, the veteran reported that his left wrist had gotten much worse, along with alleged shell fragment wounds of the abdomen and thigh. He reported left wrist weakness and failing grip strength. He reported that scars of both thighs were painful, tender, and easily irritated and that the abdomen wound stung and itched. He mentioned treatment at the Columbia VA Medical Center in 1977. He requested an examination to "properly rate my case" and he specifically requested a neurology examination of the left wrist. The RO date stamped the request as having been received on March 27, 1979. In March 1979, the RO wrote the veteran and asked him to supply a report from his personal physician. The veteran did not respond to the letter. The next correspondence from the veteran was received at the RO on November 19, 1999, wherein he requested an increase in his service-connected left hand injury. He attached a report from Wanda Starling, M.D., reflecting 40 to 50 percent left grip strength, daily pain to light touch in the left thumb and next two fingers, and stiffness and swelling of the left hand. Dr. Starling felt that the hand was 60 percent disabled. The veteran underwent VA compensation and pension examination for his left hand and wrist in December 1999. The examiner described two shrapnel entrance wounds and lacerations, 2-cm long and 2.5-cm long, respectively, to the left hand and forearm. The longer scar was over the left thumb phalanx and the other scar was proximal to that. The veteran reported numbness and paresthesias of the thumb and next two digits with difficulty in moving the fingers secondary to muscle and tendon injuries. He reported limited hand strength. The examiner noted exquisite tenderness to palpation over both scars and paresthesias over the dorsum of the hand in the dorsal sensory radial branch nerve distribution. Radial pulse was 1+. Motion of all digits was good. Weakness was noted in the flexor digitorum profundus and flexor digitorus superficialis of the index and the long fingers and in the flexor pollicis longus and in his left thumb metacarpal phalangeal joint. There was no problem with the muscles that control the ulnar two digits or with the limbrical and interossei. The examiner noted, "He has more than a moderate amount of disability in this upper extremity secondary to his injury and that also relates to his occupation as independent contractor. He is just lucky that he is right-hand dominant". In a January 2000 rating decision, the RO denied an increased rating for the left hand, rated 20 percent disabling under Diagnostic Code 8512, and established a separate 10 percent rating for a tender scar of the left forearm and wrist under Diagnostic Code 7804, effective from December 18, 1999. In February 2000, the veteran submitted an NOD based on reportedly severe left wrist pain. He resubmitted a previously submitted letter from Dr. Starling. In his substantive appeal, the veteran mentioned severe left hand and wrist pain and severe muscle damage with a very painful left forearm. In March 2000, Howard Tiller, M.D., noted that the veteran worked as a machine operator and had not lost any time due to hand complaints. Dr. Tiller noted that the veteran took Celebrex(r), simustatin, zestoretic, and ranitidine. Dr. Tiller noted full range of motion of the fingers, mild DIP (distal interphalangeal) joint swelling, and no significant Herbeden's nodes. Examination revealed decreased sensation in the superficial radial nerve distribution. There was no thenar atrophy or arthritis of the thumb joints. X-rays showed osteoarthritis of the DIP joints of the four fingers on the left, which the examiner attributed to typical male pattern, rather than the old injury. Grip strength was significantly reduced on the left. The doctor felt that the left hand was 20 percent disabled. In June 2000, the veteran testified before an RO hearing officer that he had distinct left hand symptoms attributed to bone injury, muscle injury, nerve injury, and left hand arthritis. He requested consideration of Diagnostic Code 5003 for arthritis, Diagnostic Code 5307 or 5308 for muscle injury, and consideration of Diagnostic Code 8512 for nerve injury. He felt that a May 1971 rating decision was erroneous for failing to assign a 10 percent rating for skin scars. He testified that he saw Dr. Starling only one time and that Dr. Tiller's report was submitted. He testified that he was seen at Dorn VA Medical Center and at the Greenville veterans' clinic. He testified that he had daily swelling, pain, and weakness in the left hand that was made worse by cold or wet weather. He said that he currently assembled stainless steel beer kegs but left hand weakness precluded signing up for higher paying positions that required more hand strength. At the June 2000 hearing, the veteran submitted a written request for service connection for left hand arthritis. He also requested that a May 1971 rating decision be reviewed for CUE. In a September 2000 supplemental statement of the case, the RO implicitly accepted the arthritis as a service-connected manifestation of the disability, but did not assign separate disability ratings for musculoskeletal and neurological manifestations, indicating that all manifestations were contemplated in the 20 percent rating under Diagnostic Code 8512. In March 2001, the Board remanded the case to the RO so that the veteran could have another VA examination. In September 2001, the RO sent the veteran a letter explaining the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The RO obtained medical records from Drs. Starling and Tiller; however, these were duplicates of previously submitted records. The veteran underwent a VA orthopedic compensation and pension examination in April 2002. The examiner reviewed the medical records. The veteran's complaints remained the same as noted in the previous VA examination report. The left thumb and left digits had full range of motion. The examiner felt that left grip strength was 4+/5 as was strength of the flexor hallus longus and of the index and long finger, which represented mild weakness and mild disability. The veteran reported paresthesias in the radial dorsal sensory branch of the radial nerve. Allen's test of the left thumb failed from both sides. In July 2002, the RO issued a rating decision awarding an earlier effective date of November 19, 1999, for the 10 percent rating for the left wrist scar. In July 2002, the veteran responded to the rating decision by arguing for an effective date of February 1971, based on the date of a prior claim of service connection and based on the fact that his representative had earlier notified him to expect such an effective date to be assigned by the RO. In August 2002, the veteran's representative submitted an NOD to the July 2002 rating decision. In February 2003, the RO issued an SOC finding no CUE in the May 1971 rating decision. The veteran timely perfected his appeal. In a February 2003 written presentation, the veteran's representative argued that there was CUE in the May 1971 rating decision for failing to correctly interpret the statement "sensitivity to touch is not synonymous with tender and painful on examination." The representative further argued that Dorland's defines "tenderness" as an "abnormal sensitiveness to touch or pressure", that Webster's defines "tenderness" as "acutely or painfully sensitive" and as "sensitive to touch or palpation". II. VCAA During the pendency of this appeal, the VCAA was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326) (2002). The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issues on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The VCAA and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary (i.e., to VA) that is necessary to substantiate the claim. VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Karnas, supra, the United States Court of Appeals for Veterans Claims (hereinafter referred to as the Court) held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise. The Court has also held that where a Board decision addresses a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board finds that the veteran is not prejudiced by its consideration of these claims pursuant to this new legislation and implementing regulations insofar as VA has already met all notice and duty to assist obligations under the new law and implementing regulations. The veteran in this case has been notified as to the laws and regulations governing the evaluation of residuals of a left hand shell fragment wound, the assignment of effective dates, and the standard for review for CUE. He has, by information letters, rating actions, a statement of the case and supplemental statements of the case, been advised of the evidence considered in connection with his claims, and what evidence that is potentially probative or not probative of the claims. 38 C.F.R. § 3.159(b)(1), (e). The RO has attempted to obtain, and has associated with the claims file, all available service records, VA medical records, and the private medical records identified by the claimant. By letter dated in September 2001, the RO notified the veteran of the provisions of the VCAA and its potential impact on his claims, allowing him an additional period of time in which to present evidence and/or argument in support of the appeal. This letter gave notice of what evidence the appellant needed to submit and what evidence VA would try to obtain. The veteran responded to the letter. With respect to the claim for an earlier effective date, the veteran has been apprised of the law and regulations concerning the assignment of effective dates and he has submitted evidence and argument on the matter. Thus, the requirements of the VCAA have been fulfilled. With respect to the claim of CUE, the VCAA is not applicable. Livesay v. Principi, 15 Vet. App. 165 (2001). However, the requirement to give the veteran due process certainly applies to this claim. The Board finds that a rating decision and a statement of the case have been issued, that the veteran has been adequately apprised of the law regarding claims of CUE, and that he has been afforded an opportunity to respond. III. Legal Analysis A. Increased Rating Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2002). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. The regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Crepitation within the joint structure should be noted carefully as points of contact that are diseased. Painful motion with joint or periarticular pathology which produces disability warrants at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court also held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibited weakened movement, excess fatigability or incoordination; if feasible, these determinations were to be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. The veteran has argued for consideration of separate rating for nerve injury, for muscle injury, and for arthritis. Accordingly, the Board will consider those arguments. A rating for nerve injury will be considered first. With the exceptions noted, disability from neuropathy may be rated from 10 percent to 100 percent in proportion to the motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with mild moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a (2002). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral combine with application of the bilateral factor. 38 C.F.R. § 4.124a (2002). Under Diagnostic Code 8512, a 70 percent evaluation is warranted for complete paralysis of the lower radicular group with all intrinsic muscles of hand and some or all of flexors or wrist and fingers paralyzed (substantial loss of use of hand) (dominant side). A 60 percent rating is warranted for the minor side. A 50 percent rating is warranted for incomplete severe paralysis of the dominant side and a 40 percent rating is warranted for incomplete severe paralysis of the minor side. A 40 percent rating is warranted for incomplete paralysis of the dominant side that is moderate in degree and a 30 percent rating is warranted for the minor side. A 20 percent rating is warranted for incomplete paralysis that is mild (either side). 38 C.F.R. § 4.124a, Diagnostic Code 8512 (effective prior to and on July 3, 1997). In this case, the residuals of shell fragment wounds of the left (minor) hand and wrist include nerve deficits in the sensory radial nerve distribution manifested by numbness and paresthesias in the palm, thumb, index, and long fingers, and complaint of severe pain on use. Weakness of finger and grip strength is also shown. The Board notes that a 30 percent rating is warranted for incomplete paralysis of the minor side that is moderate in degree; however, if the disability is more than moderate a higher rating should be considered. During a December 1999 VA compensation and pension examination, an examiner specifically found more than a moderate amount of injury in the left upper extremity. The Board also notes that the veteran has testified as to severe pain and weakness in the left hand that significantly impairs his ability to earn a living. On the other hand, other examiners in this case have not found as much impairment. Of note is an April 2002 compensation and pension examination report that finds only mild disability. Resolving any reasonable doubt in favor of the veteran, the Board finds that the symptoms more nearly approximate the criteria for a 40 percent rating under Diagnostic Code 8512 for severe incomplete paralysis of the minor side. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Reviewing the rating schedule to determine whether there is a rating available under Diagnostic Code 5307 that might offer a rating higher than 40 percent for muscle damage, the Board notes that the highest rating available for the affected muscle group of the non-dominant hand is a 30 percent rating. Thus, a 40 percent rating under Diagnostic Code 8512 is clearly more advantageous to the veteran. Assigning simultaneous ratings under Diagnostic Codes 8512 and 5307 would violate 38 C.F.R. § 4.14, because both diagnostic codes 8512 and 5307 consider muscle weakness. Likewise, in reviewing the rating schedule to determine whether a rating higher than 40 percent is warranted for arthritis, the Board arrives at the same conclusion. The use of Diagnostic Code 5003 would not result in a rating higher than 40 percent, even considering those factor discussed in DeLuca, supra. Moreover, a separate rating for arthritis is not for application because painful motion of the wrist, thumb, and fingers has been considered under Diagnostic Code 8512. See 38 C.F.R. § 4.59; VAOPGCPREC 23- 97, VAOPGCPREC 9- 98. After consideration of all the evidence of record, including the testimony in this matter, the Board finds that the evidence favors a 40 percent rating for residuals of a shell fragment wound of the left (minor) wrist and forearm. A 40 percent rating is therefore granted. The Board notes that a 10 percent rating has been assigned for service-connected scars and that the veteran is satisfied with that rating. Thus, it will not be considered. Finally, the Board has considered whether the residuals of left wrist and forearm shell fragment wounds warrant a higher rating on an extra-schedular basis. If the matter is not referred, the Board must provide adequate reasons and bases for its decision to not so refer it. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board notes that the veteran has testified that he is working but cannot apply for the higher paying position because of left hand weakness. The Board points out that the VA Schedule for Rating Disabilities is premised on the average impairment in earning capacity resulting from service-connected diseases and injuries and their residuals. 38 C.F.R. § 4.1. The effects of the veteran's residuals of injury to Muscle Group VII is reflected in the currently assigned 40 percent rating. Moreover, there is no evidence in the record, nor is it specifically contended otherwise, that the schedular criteria are inadequate to evaluate the veteran's disability. As such, the Board finds no basis to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. The Board will now proceed with consideration of the CUE issue. B. CUE Where a claim is denied by the RO and the claimant then fails to file a timely appeal as prescribed by 38 U.S.C. § 7105(b)(1), the RO decision becomes final. 38 U.S.C. § 7105(c) (West 2002). In the absence of new and material evidence, decisions which are "final and binding . . . will be accepted as correct in the absence of clear and unmistakable error." 38 C.F.R. § 3.105(a) (2002); accord Person v. Brown, 5 Vet. App. 449 (1993). To establish a valid CUE claim, a claimant must show that "[e]ither 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." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). The appellant cannot merely disagree with the way the facts were weighed or evaluated. Id., see also Daniels v. Gober, 10 Vet. App. 474 (1997). "CUE is a very specific kind of error, of fact or law, that when called to the attention of the reviewers compels the conclusion, to which the 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 (1993). In this case, the veteran contends that the RO erred in its May 1971 rating decision for failing to correctly interpret the statement "sensitivity to touch is not synonymous with tender and painful on examination" which resulted in not assigning a separate 10 percent rating for scars. The Board notes first of all that the May 1971 RO decision became final and the award worksheet shows he was provided a Form 21-6782, which set forth his appeal rights. The May 1971 rating decision reflects that the service- connected scars were sensitive. Thus, the correct facts were before the RO at the time of the decision. The provisions of Diagnostic Code 7804 in effect in May 1971 offered a compensable rating for superficial scars that are tender and painful on objective demonstration. Also at that time, scars, other than those characterized as disfiguring, poorly nourished, subject to repeated ulceration, tender, painful, or burn scars were to be rated on limitation of function of the part affected under Diagnostic Code 7805. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1971). It appears that the May 1971 RO decision was based on the idea that the service-connected scars, while sensitive, were not tender and painful. Thus, the Board does not find that the regulatory provisions extant at that time were incorrectly applied. Russell, supra. Whether or not the scars were "tender and painful on objective demonstration" in May 1971 is debatable. To resolve that question, a fact finder must reweigh the old evidence; however, the Court specifically prohibits the reweighing of old evidence to determine whether a prior decision is based on CUE. Daniels, supra. The veteran has further argued that the RO misinterpreted a phrase contained in a medical report; however, resolving this question would also entail reweighing old evidence to determine whether another interpretation is possible. Indeed, after reweighing the evidence, the Board agrees that another interpretation is possible; however, a valid claim of CUE cannot be based on a reweighing of old evidence, and the veteran has not presented a valid claim of CUE. The claim must therefore be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). C. Earlier Effective Date The veteran seeks review of an RO rating decision that assigned an effective date of November 19, 1999, for assignment of a separate 10 percent rating for service- connected scars. As noted above, in April 1976, the RO denied an increased rating for service-connected left hand and wrist disability. The veteran was notified of the decision and of his appeal rights, but he did not appeal that decision and it became final. He has not alleged CUE in that decision; thus, any subsequent disability rating cannot be based solely of the evidence considered in that decision. It is noted that on March 27, 1979, the veteran requested an increased rating for the left wrist. He did not respond to a request for further information and thus, he is deemed to have abandoned that claim. 38 C.F.R. § 3.158. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2002). Regarding claims for increased ratings, however, the regulation provides an exception. Paragraph (o)(2) states that for disability compensation, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2002). It appears that the RO received a viable claim for an increase on November 19, 1999. Because no factually ascertainable increase occurred within the year prior to November 19, 1999, the date of the receipt of the claim for an increase is the earliest date that can be assigned as the effective date for the increase that was ultimately granted. Therefore, November 19, 1999, must be assigned as the effective date for the veteran's separate 10 percent rating for service-connected scars of the left wrist and hand. The Board finds that the preponderance of the evidence is against the earlier effective date claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). ORDER 1. A 40 percent evaluation for residuals of a shell fragment wound of the left (minor) wrist and forearm is granted, subject to the laws and regulations concerning the payment of monetary benefits. 2. The appeal for a reversal or amendment of the May 1971 rating decision on the basis of CUE is denied. 3. An effective earlier than November 19, 1999, for a separate 10 percent rating for service-connected scars is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 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: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) 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," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.