Citation Nr: 0307769 Decision Date: 04/23/03 Archive Date: 04/30/03 DOCKET NO. 00-10 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a November 1971 rating decision in that it failed to assign a compensable rating for residuals of a left index finger shrapnel wound (sw). 2. Whether there was CUE in a November 1971 rating decision in that it failed to assign compensable ratings for residuals of chin, left thigh, right thigh, left arm, and left leg sws. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dennis F. Chiappetta, II, Counsel INTRODUCTION The appellant is a veteran who had active service from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision by the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran requested a hearing before a hearing officer at the RO, but withdrew the request in July 2000. In September 2002, the Board granted 10 percent ratings for residuals of left index finger and left leg sws. FINDINGS OF FACT 1. In November 1971, the RO granted service connection with separate, noncompensable ratings, for residuals of left index finger, chin, left thigh, right thigh, left arm, and left leg sws; the veteran did not appeal this rating, and it became final. 2. Evidence of record in November 1871 undebatably showed moderate Muscle Group (MG) VII injury; the remaining sw scars were not shown to be tender, painful, disfiguring, or productive of any functional impairment. CONCLUSIONS OF LAW 1. The rating decision in November 1971 was clearly and unmistakably erroneous in assigning a noncompensable rating for residuals of a left index finger sw; revision of that decision by assigning a 10 percent rating for the left index finger sw is warranted. 38 U.S.C.A. §§ 1155, 5107, 5109A (West 2002); 38 C.F.R. §§ 3.105, 4.56, 4.71a, 4.73, Diagnostic Codes 5307, 5309 and Note following (1971 and 2002). 2. There was no CUE in the November 1971 RO decision as to the ratings assigned for residuals of chin, left thigh, right thigh, left arm, and left leg sws, and those determinations remain final. 38 U.S.C.A. §§ 1155, 5107, 5109A (West 2002); 38 C.F.R. §§ 3.105(a), 4.118, Codes 7800, 7803, 7804, 7805 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There was a significant change in the law during the course of this appeal. On November 9, 2000, the President signed into law the Veteran's Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107. In Livesay v. Principi, 15 Vet. App. 165, 179 (2001), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that the VCAA does not apply to CUE cases. Accordingly, the Board finds that it may proceed with the adjudication of this case. Factual Background The veteran served in combat in Vietnam, and in May 1968 sustained left hand, chin, left and right thigh, left arm, and left leg sws. The wounds were described as soft tissue wounds. There was a fracture of the left second metacarpal. That wound was debrided and required skin grafting from a thigh donor site which "was subsequently unsuccessful and the wound granulated closed." In November 1968, the veteran was still receiving orthopedic management of left hand disability. The left index finger lacked full extension. None of the wounds had artery or nerve involvement. An infection developed in the veteran's left hand. On October 1971 VA examination, the veteran stated that he had no trouble from any of his shrapnel wounds except for the left hand injury. The index finger would suddenly lock until he moved it with the other hand. It affected his grip. A tiny metallic fragment was seen in the left hand on x-ray, and there was some adherence to the underlying capsule of the left index finger. The range of motion of the left index finger was from full extension to within 1/4 inch of the palm on flexion. The veteran had considerable crepitation on flexion of the finger and there was decreased grip strength. The diagnosis for the left hand was scar, left index finger with skin graft, residuals of shrapnel wound with adherence to tendon. Physical examination of the other shrapnel wound locations revealed that some retained fragments were palpable in the skin near the scars in the right thigh and the left lower leg, as well as just under the skin in the region of the left elbow scar. It was noted that all these scars were through the skin but apparently did not penetrate into the muscle and there is no adherence to the underlying structures. It was noted that these other scars gave him no disability whatsoever. The diagnosis was scars, residuals of shrapnel wounds, both legs and arms. In a November 1971 rating decision, the RO granted service connection and noncompensable ratings for, in pertinent part, scars as residuals of left index finger, chin, left thigh, right thigh, left arm, and left leg sws. The left index finger scar was rated under Code 5225 (for ankylosis) and the other scars were rated under Code 7805 (for scarring, based on limitation of motion of the affected part) and Code 7899 (chin, for disfigurement). December 1999 private x-rays showed retained metal fragments in the left hand, left thigh, left lower leg, and right knee. The left index finger showed a deformity of the distal end of the second metacarpal, and metal in the soft tissue. There were metal fragments in the left thigh muscle, and in the soft tissue of the left calf and right knee. On February 2000 VA examination, the veteran reported that the restrictions of motion he had with his left index finger had resolved. He had no problems with his left leg. He worked as a mail carrier, and walked 10 miles a day. Scars at the sites of his shrapnel wounds were well healed. The range of motion of the left index finger was normal. The impressions were shell fragment wounds. On August 2000 VA examination, the veteran stated there had been no change in his index finger since the prior examination. He did specify that the index finger ached on occasion, especially in the cold, but that it did not limit the use of the hand. Shell fragment wound scars on the veteran's chin, left thigh, right thigh, left leg, and left arm were all well healed and none caused him any pain or discomfort. Subcutaneous metal fragments were palpable at the scar sites in the left leg, right thigh, and left forearm. The left index finger had a full range of motion, with some numbness over the knuckle. Analysis The veteran did not appeal the November 1971 RO decision, and thus it is final, unless shown to be based on CUE. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error; it is the kind of error, of fact or 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. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Cook v. Principi, 258 F.3rd 1311 (Fed. Cir. 2001); Pierce v. Principi, 240 F.3rd 1348 (Fed. Cir. 2000). Left index finger The left index finger sw is now rated 10 percent. The veteran's objective is an earlier effective date for the rating. When the RO was rating this disability in 1971, the evidence showed that the injury resulted in a fracture, involved prolonged healing and infection, required skin grafting, and produced disability including adherence of the scar to underlying tissue, limitation of flexion, and loss of grip strength. Under the guidelines of 38 C.F.R. § 4.56, such findings undebatably reflect moderate (but not moderately severe) MG VII injury warranting a 10 percent, but not higher rating. 38 C.F.R. § 4.56 addresses factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot or shrapnel trauma. Evidence of "moderate" disability includes service department records of hospitalization in service for treatment of the wound and records of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and pain after moderate use affecting the particular functions controlled by injured muscles. Objective findings include scars that are relatively small and so situated as to indicate short track of missile through muscle tissue, signs of moderate impairment of muscle tonus, and definite weakness in comparative tests. Here, hospitalization and muscle weakness (demonstrated loss of grip strength) were clearly shown. The note following Code 5309 reinforces this determination, stating that the hand is so compact a structure, that isolated muscle injuries are rare, and hand injuries almost always involve damage to bones, joints, tendons, or other tissue. Rate on limitation of motion, minimum (emphasis added) 10 percent. 38 C.F.R. § 4.73, Note following Diagnostic Code 5309. In 1971 the evidence clearly showed limitation of flexion in addition to retained foreign bodies, weakened grip, and adherence of the scar to underlying tissue. So the disability also warranted 10 percent as the minimum called for under the note following Code 5309. The November 1971 rating decision limitation of consideration of the rating to be assigned for this disability to the criteria under Code 5225 (for ankylosis) alone, was CUE in that it ignored alternate criteria under which a compensable rating could be assigned. Accordingly, the veteran is entitled to revision of the November 1971 rating decision by assignment of a 10 percent rating for left index finger sw residuals under Code 5307 from July 22, 1971, the date on which his claim was received. Shrapnel wounds of the chin, left thigh, right thigh, left arm, and left leg Review of the record as it existed at the time of the November 1971 decision does not reveal that the residuals of shrapnel wounds to the left thigh, right thigh, left arm, and left leg involved anything other than painless, nontender, nonadherent scarring with some retained fragments either in the skin or just below the surface. The chin scar had not been described as disfiguring. There was no evidence of record to indicate that any of these shrapnel wounds resulted in limitation of function of the areas affected by the scars. Furthermore, the service department records from the time of the injury do not reveal any extensive treatment for the shrapnel wounds to these locations, nor do they provide any undebatable evidence that would lead an adjudicator to suspect any muscle injury or damage below the surface of the skin. Moreover, on October 1971 examination, the veteran indicated, and the conclusion was, that these other scars caused no disablement. As was noted, muscle injury was not reported with these other sw injuries. While the veteran's representative argues that the RO should have ordered X-rays that might have shown shrapnel fragments retained in the underlying muscle tissue at one or more of the scar locations, the question of whether x-rays were indicated is essentially a medical judgment determination, and a difference of opinion regarding the judgment made would not be CUE. Regardless, given that the veteran had indicated that these other sws caused no disablement, there is no reason to question the judgment made at the time that the examinations conducted were adequate. From the evidence of record at the time of the November 1971 RO decision, and based on then existing rating criteria (which have remained essentially unchanged), it was reasonable for an adjudicator to conclude then that these other scars were noncompensable. Undebatable error in the noncompensable ratings assigned in by the November 1971 decision is not shown, and further revision of that decision is not warranted. ORDER There was CUE in the November 1971 rating decision in that it assigned a noncompensable rating for residuals of a left index finger sw; a 10 percent rating for such residuals is granted, effective from July 22, 1971. The appeal to establish CUE in a November 1971 RO decision insofar as it assigned noncompensable ratings for residuals of chin, left thigh, right thigh, left arm, and left leg sws is denied. ____________________________________________ George R. Senyk 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.