Citation Nr: 0814960 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-12 700A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether a May 19, 1970 rating decision was clearly and unmistakably erroneous (CUE) in its assignment of a single 10 percent disability rating for scars to the left hand residual to a shell fragment wound. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which found no CUE present in the RO's May 1970 rating decision not to assign the veteran multiple separate ratings for scars resulting from a shell fragment wound to the left hand. The veteran subsequently initiated and perfected an appeal of this determinations. In June 2003, the veteran testified before a Veterans Law Judge who is no longer with the Board. In response to a May 2005 letter, the veteran turned down VA's offer for a new hearing before an active Veterans Law Judge. In a March 2004 decision, the Board found no CUE in the May 1970 rating decision not to assign the veteran multiple separate ratings for scars resulting from a shell fragment wound to the left hand; however, a January 2005 order issued by the U.S. Court of Appeals for Veterans Claims (Court) vacated the March 2004 Board decision. Likewise, in a November 2005 decision, the Board again found no CUE in the May 1970 rating decision not to assign the veteran multiple separate ratings for scars resulting from a shell fragment wound to the left hand; however, a November 2007 order issued by the Court vacated the November 2005 Board decision on this issue. (The November 2007 Court Order upheld the Board's November 2005 decision on the issue of CUE in the May 1970 rating decision not to assign a separate rating for peripheral nerve damage residual to the shell fragment wound to the left hand; therefore, this issue is no longer before the Board.) FINDINGS OF FACT 1. The May 19, 1970 rating decision granting a single 10 percent rating for a scar of the left hand contained the legal error of failure to apply the regulatory provision requiring the resolution of reasonable doubt in the veteran's favor on the question of whether the veteran had three separate tender scars of the left hand. 2. Had the May 1970 RO rating decision not contained CUE, the outcome of the May 1970 rating decision would have been manifestly different in the grant of service connection for three tender scars of the left hand and the assignment of three separate 10 percent ratings, effective from April 30, 1970. CONCLUSION OF LAW There was CUE in the May 19, 1970 rating decision in its failure to award three separate 10 percent disability ratings for tender scars of the left hand. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has held that the duty to notify and assist a claimant is not applicable to claims of CUE. Livesay v. Principi, 15 Vet. App. 165, 174 (2001) (en banc); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the Veterans Claims Assistance Act of 2000 does not affect matters on appeal when the issue is limited to statutory interpretation). An allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. Clear and Unmistakable Error Legal Precedents Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). The determination as to whether CUE is shown in the December 1971 and July 1988 rating decisions must be based only on consideration of the evidence of record at the time of each decision in question, and with consideration of the laws extant at that time. See Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992). CUE is a very specific and rare kind of "error." It is the 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad- brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (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)). CUE in May 1970 Rating Decision Rating for Scars The veteran's service medical records show that in April 1969 during service in the Republic of Vietnam he was hit and injured by shrapnel in the left hand. In a May 1970 rating decision, the RO granted service connection for a single tender scar of the left hand as a residual of shell fragment wound in the left hand, and assigned a single 10 percent disability rating, effective from April 30, 1970. Although the May 1970 rating decision granted service connection and assigned a 10 percent disability rating for only one tender scar of the left hand, the May 1970 rating decision noted that the evidence showed: 1) a pedicle graft in the dorsum of the left hand that was 7 centimeters by 3 and 1/2 centimeters that included slight tenderness; 2) a slightly tender scar in the lateral aspect of the ring basal phalanx going into the web and extending to the base of the fifth finger; and 3) a 4 centimeters scar over the hypothenar eminence in the palm that was tender. The May 1970 RO rating decision indicated that the veteran's service records were not at that time complete. In February 2001, the veteran entered a claim for CUE in the May 1970 rating decision, contending that the RO adjudicator committed CUE in the May 1970 rating decision in failing to award three separate 10 percent ratings for tender scars of the left hand. Through his attorney, the appellant is essentially contending that the VA adjudicator in May 1970 ignored the favorable medical evidence of the presence of three separate tender scars of the left hand, even though the May 1970 rating decision reported in the rating decision the clinical findings that showed the presence of three scars. The appellant's contention is not simply that VA in the May 1970 rating decision improperly weighed or evaluated the evidence, but that the May 1970 VA adjudicator selectively chose to weigh only the unfavorable evidence that showed a single "scar" and made this the basis for its finding that there was only a single scar of the left hand for which only a single 10 percent disability rating was warranted. The appellant further contends that, had the May 1970 VA adjudicator considered and weighed all the evidence of record, or constructively of record, at that time, not just the unfavorable evidence showing a single "scar," because there was medical evidence of record of both a "scar" and of three "scars," reasonable doubt on the factual question of how many tender scars the veteran had on his left hand had been raised by the medical evidence, so the VA adjudicator in May 1970 was required to apply the regulatory provisions of 38 C.F.R. § 3.102 to resolve such reasonable doubt on this question in the veteran's favor. The appellant further contends that, had reasonable doubt been properly applied, the manifest outcome of the May 1970 rating decision would have been the assignment of three separate 10 percent disability ratings for the three separate tender scars of the left hand that are residual to in-service shrapnel wound injury, effective from April 30, 1970. The evidence of record at the time of the May 1970 rating decision shows that, following the April 1969 in-service shrapnel wound injury to the left hand during service in Vietnam, a split thickness skin graft was performed in October and November 1969 with skin grafts from the abdomen to the left hand. A February 1970 Report of Medical Examination report (for Medical Board purposes) reflects a diagnosis of "tender scar in palm and dorsum of left hand and sides of 4th and 5th fingers, secondary to shrapnel wounds" in the Republic of Vietnam in April 1969. A Physical Evaluation Board was recommended. A February 1970 VA memorandum requests hospitalization in March and April 1970 for the veteran for shrapnel wounds with "tender scar in palm and dorsum of left hand and sides of 4th and 5th fingers." A March 1970 VA medical report, likewise, recommended transfer to a VA hospital for continued care of the left hand. A March 1970 service separation examination report showed clinical findings of a pedicle graft in the dorsum of the left hand that was about 7 centimeters long by 3 and 1/2 centimeters wide with slight tenderness to the peripheral area; a slightly tender scar in the lateral aspect of the ring basal phalanx going into the web and extending slightly to the base of the fifth finger; and a 4 centimeters scar over the hypothenar eminence in the palm that was tender. The diagnosis was tender scar in palm and dorsum of left hand and sides of 4th and 5th fingers, due to shrapnel wounds received in Vietnam. An April 1970 report of Medical Board proceedings diagnosed "[t]ender scar in palm and dorsum of left hand and sides of 4th and 5th fingers" due to shrapnel wounds received in Vietnam. An April 1970 report of Physical Evaluation Board Proceedings reflects diagnoses that include tender and painful "scars" of the left hand. On his April 30, 1970 claim for service connection, the veteran wrote that he had "scar - palm + dorsum [left] hand + 4th & 5th fingers." After a review of the evidence of record at the time of the May 1970 rating decision, the Board finds that the May 19, 1970 rating decision granting a single 10 percent rating for a scar of the left hand contained the legal error of failure to apply the regulatory provisions requiring the resolution of reasonable doubt in the veteran's favor on the question of whether the veteran had three separate tender scars of the left hand. The reasonable doubt regulation, 38 C.F.R. § 3.102 (1970), in effect in 1970 provided as follows: It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists by reason of the fact that the evidence does not satisfactorily prove or disprove the claim, yet a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that his claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a) (emphasis added). At the time of the May 1970 rating decision, there was some medical evidence that referred to a "scar" of the veteran's left hand, and there was other medical evidence that referred to "scars" of the left hand, as well as specific clinical findings that delineated the presence of three tender scars. The medical evidence before the VA adjudicator in May 1970 that showed the presence of three scars (versus just one scar) was of sufficient weight to invoke the doctrine of reasonable doubt, as the evidence did not satisfactorily prove or disprove the claim. The May 1970 VA adjudicator was required to, but did not, mention or apply the standard of reasonable doubt on the question of whether the medical evidence showed one or three scars of the left hand. Because of the very specific clinical findings, measures, and medical descriptions of scars in this case that showed the presence of evidence that summarily referred to a "scar" versus "scars" and found that only one scar was present. The specific clinical findings that weighed in favor of the veteran's claim, if not in fact outweighed any general references or diagnosis of a "scar," are of sufficient weight to place the evidence in relative equipoise on the question of how many tender scars the veteran had on his left hand. Notwithstanding the weight of the specific clinical and medical findings of three scars, the May 1970 VA adjudicator selectively and erroneously relied only on the unfavorable evidence that showed a "scar," entirely ignoring the evidence that was favorable to the veteran's claim that showed "scars" and that showed specific clinical measures of the three scars of the left hand. Although the May 1970 VA adjudicator reported clinical findings that showed the presence of three scars to the veteran's left hand at that time, the VA adjudicator did not in fact consider or weigh this evidence of multiple scars in the May 1970 rating decision. Reporting of facts is not the same as adjudication of those facts. The May 1970 VA adjudicator had a duty to weigh all the evidence then of record, including the specific clinical and medical evidence of three tender scars that was favorable to the veteran. Had the VA adjudicator considered all the evidence then of record, or constructively of record, at least reasonable doubt consideration under 38 C.F.R. § 3.102 would have been invoked, and would have required resolution of the claim on this basis. Significantly, had the May 1970 VA adjudicator, as was required, applied reasonable doubt to the very facts reported in the May 1970 rating decision, to resolve the question of how many tender scars the veteran had on the left hand, the manifest outcome of the May 1970 rating decision would have been different, namely, the grant of service connection and the assignment of three separate 10 percent disability ratings for three distinct tender scars of the left hand, from April 30, 1970. Had the May 1970 RO rating decision not contained CUE, the outcome of the May 1970 rating decision would have been the assignment of three separate 10 percent ratings for tender scars of the left hand, effective from April 30, 1970. For these reasons, the Board finds that revision of the clearly and unmistakable erroneous May 1970 rating decision is warranted. ORDER The May 1970 rating decision, which granted service connection for only one scar of the left hand, contained CUE, and should be revised to reflect a grant of service connection and assignment of separate 10 percent ratings for three scars of the left hand from April 30, 1970. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs