Citation Nr: 0820604	
Decision Date: 06/24/08    Archive Date: 06/30/08

DOCKET NO.  06-23 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Whether there was clear and unmistakable error (CUE) in a 
February 1946 rating decision that assigned a 20 percent 
evaluation for the residuals of shell fragment wounds of the 
left upper extremity.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel




INTRODUCTION

The veteran served on active duty from September 1942 to 
December 1945.  He has been awarded a Purple Heart Medal.

This case comes to the Board of Veterans' Appeals (Board) on 
appeal of a rating decision of the Pittsburgh, Pennsylvania, 
Regional Office (RO) of the Department of Veterans Affairs 
(VA).  

A motion to advance the case on the Board's docket has been 
granted.  


FINDINGS OF FACT

1.  The veteran sustained two shrapnel wounds of left forearm 
from an 88 mm weapon in August 1944 resulting in injuries of 
at least two muscle groups of the left forearm.  

2.  By rating decision dated in February 1946, the veteran 
was assigned a 20 percent rating for the residuals of a shell 
fragment wound of the left forearm under diagnostic code 
3168, muscle group VI.  Provisions concerning elevation of 
two muscle groups of the forearm were not applied.


CONCLUSION OF LAW

The February 1946 rating decision was clearly and 
unmistakable erroneous, such that a 30 percent rating should 
have been assigned.  38 C.F.R. 3.105(a) (2007); 1933 Schedule 
for Rating Disabilities, Diagnostic Code 3168 (as in effect 
prior to April 1, 1946).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the Veterans 
Claims Assistance Act of 2000 (VCAA) is not applicable to the 
issue of clear and unmistakable error. The Court has held 
that the VCAA does not apply to CUE actions.  See Livesay v. 
Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does 
not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. 
App. 302 (2001) (holding VCAA does not apply to RO CUE 
claims).  The general underpinning for the holding that the 
VCAA does not apply to CUE claims is that regulations and 
numerous legal precedents establish that a review for CUE is 
only upon the evidence of record at the time the decision was 
entered (with exceptions not applicable in this matter).  See 
Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 
240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's 
interpretation of 38 U.S.C.A. § 5109A that RO CUE must be 
based upon the evidence of record at the time of the 
decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 
(Fed. Cir. 2000) (upholding Board CUE regulations to this 
effect). 

The veteran is claiming CUE in a February 1946 rating 
decision that awarded a 20 percent evaluation for the 
residuals of shell fragment wounds of the left arm.  It is 
noted that the veteran's claims file consistently shows that 
the veteran is right handed and, thus, his left arm is his 
minor extremity for rating purposes.  Review of the record 
shows that in February 1946 the RO granted service connection 
for a "wound, left elbow region, fracture compound, ulna 
left.  SHELL FRAGMENTS"  The rating noted that the disorder 
was rated on incomplete service records.  A 20 percent 
evaluation was assigned on the basis of diagnostic code 3168 
of the 1933 Schedule for Rating Disabilities.  The effective 
date of the award was set at December 13, 1945, the day 
following the day of the veteran's discharge from active 
duty.  It is noted that the current Schedule for Rating 
Disabilities that is now codified at 38 C.F.R. Part 4 and 
which is commonly referred to as the 1945 rating schedule, 
did not actually become effective until April 1, 1946.  As 
such, the rating board in February 1946 applied the correct 
schedule.  As will be explained, however, the application of 
the schedule was clearly erroneous.  

Under the provisions of 38 C.F.R. § 3.105(a), previous 
determinations that are final and binding, including 
decisions of the assignment of disability ratings, will be 
accepted as correct in the absence of clear and unmistakable 
error. In order for a claim of CUE to be valid, there must 
have been an error in the prior adjudication of the claim; 
either 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. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); 
Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. 
Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Further, 
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 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. Id. Simply to claim 
CUE on the basis that the previous adjudication improperly 
weighed and evaluated the evidence can never rise to the 
stringent definition of CUE, nor can broad-brush allegations 
of "failure to follow the regulations" or "failure to give 
due process," or any other general, non- specific claim of 
"error" meet the restrictive definition of CUE. Fugo v. 
Brown, 6 Vet. App. 40, 44 (1993).

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, 6 Vet. App. at 
43.

Where evidence establishes CUE, the prior decision will be 
reversed or amended. For the purpose of authorizing benefits, 
the rating 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. §§ 3.104(a), 3.400(k).



The Court has propounded a three-pronged test to determine 
whether CUE is present in a prior final 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 that 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, 6 Vet. App. at 245, quoting 
Russell, 3 Vet. App. at 313-14.

The February 1946 rating decision notes that it was conducted 
on incomplete service medical records.  Review of those 
record shows that several documents were dated as having been 
received in March 1946 or later.  For the purpose of this 
decision, the Board finds that those documents that were not 
so marked were of record at the time of the February 1946 
decision.  Review of those records shows that the veteran 
sustained shell fragment wounds of the left arm while in 
combat in August 1944.  A sulfa dressing was initially 
applied, the arm was splinted and the veteran received a 
morphine injection.  At the evacuation hospital later that 
day, it was noted that the veteran had a possible compound 
comminuted fracture, but that no X-ray studies could be 
performed at that time.  The wounds were debrided and a cast 
applied to the fingers.  Secondary closure of the wounds was 
performed and a plaster of paris cast was applied five days 
after the initial injury.  

On October 1944, the wounds were described in detail.  They 
included a perforating wound of the left middle third of the 
forearm, with the point of entrance the anterio-medial 
surface and the point of exit the postero-medial surface.  
This involved skin, muscle and bone and was noted to be from 
shrapnel of an 88 mm shell.  There was a compound, comminuted 
fracture of the left ulna at the middle third that was 
complete.  There was also a penetrating wound of the left 
upper third of the forearm in the postero-medial aspect and a 
retained foreign body of shrapnel in the left upper third of 
the forearm.  Additionally, there was a penetrating sound of 
the forehead that was described as slight.  In December 1944, 
a procedure for excision of the scar in the region of the 
left olecranon process was performed.  Later that month, the 
veteran's wounds were described as being a compete compound 
comminuted fracture of the left ulna at the middle third, 
incurred when struck by enemy shrapnel in August 1944; a 
traumatic foreign body in the upper third of the left 
forearm; and ankylosis, fibrous, slight of the left elbow 
joint.  

A review of the 1933 Schedule for Rating Disabilities shows 
that Diagnostic Code 3168 applies to Muscle Group VI, the 
extensors of the elbow, the Triceps and Anconeus muscles.  
The schedule provides that moderate impairment of this muscle 
group warrants a 10 percent evaluation; moderately severe 
disability warrants a 20 percent evaluation; and severe 
disability warrants a 30 percent rating.  As such, the 
veteran was evaluated as having moderately severe disability 
of this muscle group.  

The 1933 Schedule for Rating Disabilities also provides, in 
pertinent part, that muscle injuries in the same anatomical 
region, i.e. (a) shoulder-girdle and arm, (b) forearm and 
hand, (c) pelvic-girdle and thigh, (d) leg and foot will not 
be combined, but instead the rating for the major group 
affected will be elevated from moderate to moderately severe, 
or from moderately severe to severe, accoding to the severity 
of the aggregate impairment of function of the extremity.  

The medical evidence of record shows that the veteran 
actually sustained two shrapnel injuries in the same 
anatomical area, the left forearm, in August 1944.  The 
service medical records specifically noted that the injury 
was the result of shrapnel from an 88 mm weapon.  In speaking 
of German artillery weapons of World War II, this was 
described as ". . . the terror of every dogface.  It can do 
everything but throw shells around corners, and sometimes we 
think it has even done that."  Bill Mauldin, Up Front 93, 
(Henry Holt and Company, Inc.) (1945).  The fact that this 
was specifically mentioned in the service medical records is 
found significant regarding the severity of the veteran's 
injuries.  

The veteran sustained one wound in the upper third of the 
forearm, near the elbow.  The muscles identified as group VI 
in the 1933 rating schedule included the triceps, which is 
above the elbow, and the anconeus, which lies just below.  
There is no identifiable muscle from Group VI that runs as 
far as the middle third of the arm, the location of the 
veteran's second shrapnel wound.  Dorland's Illustrated 
Medical Dictionary 1191 (30th ed. 2003).Therefore, it is 
clear from the service medical records, that the veteran 
sustained injuries of two muscle groups in the same 
anatomical area.  Applying the rating criteria from 1933 
stated above, the impairment of the muscle group found to be 
predominant should have been elevated from moderate to 
moderately severe or from moderately severe to severe.  The 
service medical records in December 1945 detailed impairment 
of the elbow, described as fibrous ankylosis, as the 
predominant disability.  Thus the rating based on impairment 
of muscle group VI, which lies closest to the elbow, was 
appropriate.  Moreover, this it the only pertinent code that 
provides a 30 percent rating for severe impairment.

The rating specialist, however, should have been aware of the 
involvement of the second muscle group farther down the arm.  
This involvement should have prompted elevation of the 
disability rating in accordance with the rating schedule.  
The rating assigned was 20 percent, representing moderately 
severe disability of muscle group VI.  Clearly this rating 
should have been increased to severe and the 30 percent 
evaluation assigned.  Under these circumstances, the claim is 
granted to this extent.  

The 1933 rating schedule does not provide for a rating in 
excess of 30 percent for any of the other muscle groups in 
the forearm and hand.  Group VII has a maximum rating of 20 
percent for severe disability of a minor extremity.  The 
maximum rating for severe disability of a minor extremity 
found for Muscle Group VIII is 10 percent.  There was no 
significant involvement of the veteran's hand itself not 
considered in the rating contemplated herein.  Therefore, 
there are no criteria upon which a rating in excess of 30 
percent may be assigned.  



ORDER

Clear and unmistakable error in the February 1946 rating 
decision having been shown, a 30 percent rating for the 
residuals of shell fragment wounds of the left forearm is 
warranted from December 14, 1945.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs