Citation Nr: 0433908 Decision Date: 12/23/04 Archive Date: 12/29/04 DOCKET NO. 00-14 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether a November 1966 rating action which assigned a noncompensable rating with a grant of service connection for a right facial disorder, then characterized as a right maxilla fracture, was clearly and unmistakably erroneous (CUE)? 2. Entitlement to an effective date prior to September 29, 1999, for the grant of an increased rating from zero to 40 percent disabling for residuals of a right maxilla fracture with limitation of temporomandibular articulation. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from February 1963 to August 1966. The appeal arises from the December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, granting a 40 percent rating effective from September 29, 1999, for residuals of a right maxilla fracture with limitation of temporomandibular articulation. The appeal also arises from a March 2000 rating decision that found that the November 1966 RO decision which granted service connection for residuals of a right maxilla fracture, was not clearly and unmistakably erroneous (CUE) in assigning a noncompensable rating for that disorder. In a June 2000 VA Form 9 the veteran requested a hearing before a member of the Board in Washington, D.C. However, by a signed submission in June 2001 the veteran expressly withdrew that request. The Board issued a decision in September 2001 denying both claims on appeal. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2004, the Court vacated the Board's decision and remanding the case to the Board for readjudication, as discussed in the body of this Remand, below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. Consistent with the instructions below, VA will notify you of the further action required on your part. REMAND A November 1966 RO decision granted service connection, in pertinent part, for a right maxilla fracture, and assigned a noncompensable evaluation. That decision was not timely appealed and it is final in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105. The Court in its July 2004 decision found that the Board, in considering whether that November 1966 RO decision was CUE, failed to address whether that decision was CUE for failure to consider a higher disability rating on the basis of muscle injury and right facial seventh nerve paralysis, pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5325; and 38 C.F.R. § 4.124(a), Diagnostic Code 8207 (1966), respectively. The Court has held that for CUE to exist: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In order for there to be a valid claim of CUE, the veteran must assert more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412, 418 (1996). The veteran must provide some degree of specificity as to what the alleged error is, and, unless it is the kind of error that, if true, would be CUE on its face, "persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 44 (1993). The Board notes that the veteran has not been given the opportunity to address with specificity the question of whether the November 1966 RO decision was CUE for failure to address the possibility of a higher initial evaluation either based on facial muscle injury pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5325; or based on right facial seventh nerve paralysis pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8207, as they existed at that time. The Board accordingly remands the case to afford the veteran that notice, and to allow the RO to address in the first instance those bases for CUE. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.101 (2003) (Board's jurisdiction generally predicated on an appeal having been filed concerning an issue in controversy). Bernard v. Brown, 4 Vet.App. 384, 391 (1993). Accordingly, the case is remanded for the following: 1. The RO should afford the veteran notice of its intent to adjudicate the issue whether the November 1966 RO decision granting service connection for a right maxilla fracture, and assigning a noncompensable evaluation for that disorder, was clearly and unmistakably erroneous (CUE) for not having considered a higher initial rating on the basis of either facial muscle injury pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5325; or based on right facial seventh nerve paralysis pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code 8207 (1966). 2. Thereafter, and following any other indicated development, the RO should prepare a new rating decision and readjudicate the appealed claims. In so doing the RO must consider whether the November 1966 decision granting service connection for a right maxilla fracture and assigning a noncompensable evaluation for that disorder was CUE for not considering rating the veteran pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5325, and 38 C.F.R. § 4.124(a), Diagnostic Code 8207 (1966). The RO should issue an appropriate notice of that rating action. If any benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).