Citation Nr: 0618568 Decision Date: 06/23/06 Archive Date: 06/30/06 DOCKET NO. 03-34 853A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Whether an October 1963 rating decision contained clear and unmistakable error (CUE) in assigning a 10 percent disability rating for facial scars. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from August 1952 to August 1956, and from August 1957 to January 1962. The procedural history of this case requires some explanation. In a September 1994 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, denied a rating in excess of 10 percent for facial scars and a rating in excess of 10 percent for mild sensory changes, supra-orbital nerve. The veteran appealed the RO's decision, arguing that higher ratings were warranted. In February 1998, the Board of Veterans' Appeals (Board) remanded the matter for additional evidentiary development. While the matter was in remand status, in a March 2001 rating decision, the RO increased the rating for the veteran's facial scars to 30 percent, effective May 25, 1994, the date of receipt of his claim for an increased rating for that disability. The veteran was notified of this decision in a letter dated March 30, 2001. In April 2001 statements, the veteran withdrew his pending appeal, indicating that the award of the 30 percent rating satisfied his pending appeal on all issues. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the veteran indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204. In a statement received on April 11, 2002, after the expiration of the appellate period, the veteran contended that the effective date for the award of the 30 percent rating for facial scars should be May 29, 1963, the date of his original claim for service connection for facial scars. The veteran and his representative argued that the October 1963 rating decision should be revised based on CUE in that decision for not assigning a rating higher than 10 percent for the facial scars. In a September 2003 rating decision, the RO denied an effective date earlier than May 25, 1994, for a 30 percent rating for facial scars, noting that earlier rating decisions in the 1960's which assigned a 10 percent rating for facial scars, were not "clearly erroneous." The veteran appealed the RO's decision. In August 2004, a hearing was held in Washington, D.C., before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. In January 2005, the Board remanded the matter for due process considerations. As noted by the Board in its January 2005 remand, the veteran's April 2002 statement discussed above does not constitute a timely notice of disagreement with the March 2001 rating decision which assigned the May 1994 effective date for the 30 percent rating for facial scars. See 38 C.F.R. §§ 20.200, 20.201, 20.302(a), 20.305(a) (2005). Therefore, that decision is final. However, the veteran's April 2002 statement, in which he claimed that effective date for a 30 percent rating should be in 1963, may reasonably be construed as a claim of CUE in the October 1963 rating decision which assigned a 10 percent rating for facial scars rather than a higher rating. The RO appeared to address this claim in the September 2003 rating decision in which it noted the prior rating decisions were not "clearly erroneous." Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (holding that claim for earlier effective date was claim of clear and unmistakable error in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (noting that to be awarded earlier effective date, veteran must show clear and unmistakable error in RO decision disallowing higher rating). In addition, pursuant to the Board's January 2005 remand instructions, the RO again considered the CUE issue, and provided the veteran with appropriate laws and regulations in a detailed March 2005 Supplemental Statement of the Case. Thus, the Board finds that the issue currently on appeal is properly characterized as whether there was CUE in the October 1963 rating decision assigning a 10 percent rating for facial scars. FINDINGS OF FACT 1. In an October 1963 rating decision, the RO granted service connection for facial scars and assigned a 10 percent disability rating. 2. The veteran was notified of the October 1963 decision in a November 1963 letter, but he did not perfect an appeal within the applicable time period. 3. The final October 1963 rating decision assigning a 10 percent rating for facial scars was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. CONCLUSION OF LAW The October 1963 rating decision was not clearly and unmistakably erroneous in assigning a 10 percent disability rating for facial scars. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that the VCAA is not applicable to claims of clear and unmistakable error, since such claims are not conventional appeals, but rather are requests for revision of previous decisions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (regarding clear and unmistakable error claim as to a prior final RO decision); Juarez v. Principi, 16 Vet. App. 518, 521 (2002) (per curium order) (citing Parker as "holding VCAA inapplicable to claim that RO decision contained CUE"). Neither the veteran nor his representative has argued otherwise. Background The veteran's service medical records show that in May 1958, he sustained various injuries in an automobile accident, including lacerations to his forehead and nose. In December 1958, he underwent plastic surgery to excise the forehead scar. At the veteran's December 1961 military separation medical examination, the examiner noted a five inch vertical scar on the left side of the veteran's forehead, a five inch "L" shaped scar on the anterior right forehead, and multiple scars of the nose. The examiner indicated that the scars were well-healed, with no sequelae. In May 1963, the veteran submitted an application for VA compensation benefits, seeking service connection for multiple disabilities, including residuals of lacerations to the nose and forehead. His spouse submitted a statement in July 1963 in which she described the veteran's scar as "rather ugly." In connection with his claim, the veteran underwent VA neurological examination in August 1963. The examiner noted that the veteran had been involved in an automobile accident in service, sustaining multiple lacerations, including one major scar on the forehead which required plastic repair. The veteran's current complaints included pain in the underlying area of his forehead scar, particularly during weather changes. Examination revealed "evidence of a linear scar, well healed, nontender, of no real cosmetic deformity over the left forehead running from the hairline in the region of the lateral aspect of the left eyebrow." The examiner indicated that "no other scars are noticeable at this time." At an August 1963 VA orthopedic and surgical examination, the veteran reported that any change in the weather caused his forehead scar to feel as if ants were crawling in the area. Examination revealed multiple, well-healed laceration scars of the forehead, left eyebrow and nose, which the examiner described as "somewhat disfiguring." There was no evidence of tenderness, keloid, inflammation, or adherence. The left forehead scar measured approximately 41/2 by 1/4 inches extending into the left eyebrow and medially towards the nose. There was also a right forehead scar which measured 3/8 by 1/16 inches, and two scars on the nose which measured 1 by 1/16 inches. The examiner ordered "color photos of the face for disfigurement evaluation by the Rating Board" and it is noted that these photographs are included in the record in an envelope attached to the August 1963 examination report. The diagnoses included multiple laceration scars of the face, disfiguring. In an October 1963 rating decision, the RO granted service connection for well-healed scars of the face and assigned an initial 10 percent rating, pursuant to Diagnostic Code 7800. In reaching its decision, the RO noted that examination had revealed somewhat disfiguring scars of the veteran's face, with no evidence of tenderness, keloid formation, or adherence, and no real cosmetic deformity. The veteran was notified of this decision in a November 1963 letter, but he did not perfect an appeal within the applicable time period. The veteran now argues that the October 1963 rating decision was clearly and unmistakably erroneous in failing to assign a rating in excess of 10 percent for facial scarring. He claims that the October 1963 rating decision was based solely on verbal descriptions of his facial scarring, and did not mention color photographs taken at the time of the August 1963 VA medical examination. At his August 2004 Board hearing, the veteran testified that it was his belief that the record at the time of the October 1963 rating decision showed that his facial scarring was repugnant and disfiguring enough to warrant a 30 percent rating. He further testified that his scarring had not increased in severity from 1963 to the present date and that his facial scars had caused him emotional distress. The veteran's representative argued the veteran's testimony at a hearing before the Board in April 1964 on the issue of entitlement to service connection for a back disorder constituted a notice of disagreement with October 1963 rating decision assigning a 10 percent rating for facial scars. Applicable law Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. A decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2005). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as 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 (1993). The United States Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either 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. Second, 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." Third, a determination that there was clear and unmistakable error must be based on the record and the 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)); see also VA O.G.C. Prec. Op. No. 12-95 (May 10, 1995), 60 Fed. Reg. 43,186 (1995). Analysis As set forth above, in an October 1963 rating decision, the RO granted service connection for facial scars and assigned a 10 percent rating, pursuant to Diagnostic Code 7800. The veteran was informed of the determination in a November 1963 letter, but he did not appeal the decision within the applicable time period. Thus, the decision is final. With regard to the finality of the October 1963 rating decision, the Board notes that at the August 2004 hearing the veteran's representative argued that a portion of the veteran's testimony at a hearing before the Board in April 1964 on the issue of entitlement to service connection for a back disorder constituted a notice of disagreement with the assignment of an evaluation of 10 percent for facial scars by the October 1963 rating decision. A review of the transcript of the April 1964 hearing fails to reveal a statement by the veteran disagreeing with the evaluation assigned by the RO for his facial scars and, in any event, a regulation then in effect, 38 C.F.R. § 19.1e (1964), provided that a notice of disagreement shall be filed with the activity which made the decision being appealed, that is, with the RO, and so the veteran's testimony at a hearing before the Board in April 1964 could not constitute a timely notice of disagreement with the RO's October 1963 decision. Therefore, the October 1963 rating decision is final and not subject to revision on the same factual basis absent a showing of CUE. 38 U.S.C.A. §§ 7104, 7105 (West 2002). Here, the veteran asserts that there was CUE in the October 1963 rating decision assigning a 10 percent rating for facial scars. As previously stated, a review for CUE in a prior decision must be based on the record and the law that existed when that decision was made. Under the criteria in effect at the time of the October 1963 rating decision, Diagnostic Code 7800 provided a noncompensable rating for slightly disfiguring scars of the head, face, or neck. A 10 percent rating was assigned for moderately disfiguring scars and a 30 percent rating was assigned for severely disfiguring scars, especially if the scarring produced marked and unsightly deformity of the eyelids, lips, or auricles. A 50 percent rating was assigned if the scarring resulted in complete or exceptionally repugnant deformity of one side of the face or in marked or repugnant bilateral disfigurement. When, in addition to tissue loss and cicatrization, there was marked discoloration, color contrast, or the like, the 50 percent rating under Diagnostic Code 7800 could be increased to 80 percent, the 30 percent rating to 50 percent, and the 10 percent rating to 30 percent. Diagnostic Code 7800, Note. In this case, the record before the RO at the time of the October 1963 rating decision included the service medical records and the August 1963 VA medical examination reports. The Board notes that none of this evidence characterizes the veteran's scarring as severely disfiguring, or productive of marked or unsightly deformity of the eyelids, lips, or auricles. Rather, the examiners in August 1963 indicated that the veteran's scaring was only "somewhat disfiguring" and "of no real cosmetic deformity." Similarly, there were no findings of tissue loss, cicatrization, marked discoloration, or color contrast. For these reasons, the Board finds that the RO's assignment of a 10 percent rating for facial scars under Diagnostic Code 7800 was supported by the evidence and was not CUE. Simply, the Board can identify no undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. In that regard, the Board has considered the veteran's contentions to the effect that the RO failed to consider color photographs taken at the time of the August 1963 VA medical examination. However, the RO's failure to discuss the color photographs in the October 1963 rating decision does not mean that they were not, in fact, considered and the failure to discuss this evidence is not clear and unmistakable error. Eddy v. Brown, 9 Vet. App. 52, 58-59 (1996) (holding that silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record). In any event, even assuming for the sake of argument that the RO did fail to consider the photographs, given the content of those pictures, it would not necessarily have led to a materially different outcome. See Fugo, 6 Vet. App. at 43-44 (holding that "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable."). The Board has also carefully considered the veteran's arguments to the effect that the evidence of record at the time of the October 1963 rating decision showed that his facial scarring was repugnant and disfiguring enough to warrant a 30 percent rating. As noted above, however, CUE is more than a difference of opinion. 38 C.F.R. § 3.105(b). The mere allegation that the evidence then of record should have been interpreted the way that the veteran now sees it does not satisfy the heavy burden of demonstrating CUE. The veteran's disagreement is with the manner in which the facts of record were weighed, and such disagreement is not CUE. Crippen v. Brown, 9 Vet. App. 412, 417-418 (1996). The Board finds, therefore, that it has not been shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. Thus, the October 1963 rating decision was not clearly and unmistakably erroneous in assigning a 10 percent disability rating for facial scars. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2005). ORDER The October 1963 rating decision was not clearly and unmistakably erroneous in assigning a 10 percent disability rating for facial scars. The appeal is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs