Citation Nr: 1127253 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 02-12 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than August 24, 2000, for the assignment of a 20 percent rating for gunshot wound, muscle group VI, left arm, moderate. 2. Entitlement to an effective date earlier than August 24, 2000, for the assignment of a 10 percent rating for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound. 3. Whether a March 1970 RO decision which denied entitlement to a rating in excess of 10 percent for the award of service connection for gunshot wound, muscle group VI, left arm, moderate, should be reversed or revised on the grounds of clear and unmistakable error (CUE). 4. Whether a March 1970 RO decision which denied entitlement to a compensable rating for the award of service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound, should be reversed or revised on the grounds of CUE. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The veteran served on active duty with the United States Marine Corps from September 1965 to December 1969. He was awarded a Silver Star, Purple Heart, and Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2001 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas and the Appeals Management Center (AMC) in Washington, DC. The June 2001 decision denied entitlement to earlier effective dates, while the September 2007 decision declined to revise the March 1970 decision on the basis of CUE. In June 2008, a hearing before an Acting Veterans Law Judge was held. The issues certified for appeal at that time were limited to the effective date claims. In clarifying the issues, the Judge identified the appeals regarding CUE. Subsequently, all four issues were remanded to the RO, via the AMC, for further consideration and to permit the Veteran to perfect his appeal with regard to CUE. The June 2008 hearing does not represent testimony on the merits of the CUE claims, and hence the presiding Judge need not participate in a decision on those claims. With regard to the effective date claims, as is discussed below, no decision is being rendered, and hence the presiding Judge need not participate. 38 C.F.R. § 20.707. The Veteran requested an additional hearing regarding the merits of the CUE claims following perfection of those appeals. Such was held before the undersigned at the Board's Washington, DC, offices in July 2011. Unfortunately, the recording equipment malfunctioned, and no transcript of the hearing is available. However, in light of the extreme hardship which would be imposed on the Veteran to attend a new hearing, given his Texas residency and desire for a hearing at the Board's offices, and the entirely favorable decision below, there is no prejudice to the Veteran in proceeding with a decision at this time. The Veteran's representative was made aware of the lack of transcript, and elected to proceed; the submission of July 12, 2011 correspondence confirms this election. FINDINGS OF FACT 1. At the July 2011 hearing, and in subsequently submitted written confirmation, prior to promulgation of a decision on the appeal, the Veteran, through and with his representative, withdrew his appeals for an earlier effective date of service connection and evaluation for residuals of a left arm gunshot wound, residuals of right hand shell fragment wounds, and CUE in the March 1970 assignment of evaluation of residuals of a left arm gunshot wound. 2. Service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound, was granted in a March 1970 rating decision and a noncompensable evaluation was assigned; the decision became final in March 1971. 3. The March 1970 rating decision granting service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound and assigning a noncompensable evaluation contained CUE in that it failed to identify and apply any evaluation criteria in compliance with the law extant at the time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal having been met, the Board does not have appellate jurisdiction to review the claim for an effective date earlier than August 24, 2000, for the assignment of a 20 percent rating for gunshot wound, muscle group VI, left arm, moderate. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2010). 2. The criteria for withdrawal of a substantive appeal having been met, the Board does not have appellate jurisdiction to review the claim for entitlement to an effective date earlier than August 24, 2000, for the assignment of a 10 percent rating for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2010). 3. The criteria for withdrawal of a substantive appeal having been met, the Board does not have appellate jurisdiction to review the claim for revision of a March 1970 RO decision which denied entitlement to a rating in excess of 10 percent for the award of service connection for gunshot wound, muscle group VI, left arm, moderate, on the grounds of CUE. 38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2010). 4. The March 1970 rating decision contained CUE pertaining to assignment of a noncompensable evaluation for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound; a 10 percent evaluation is warranted from December 16, 1969. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 4.20, 4.27, 4.71a, Diagnostic Codes 5155 and 5223 (1970); 38 C.F.R. § 3.105(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). At the July 2011 hearing, the Veteran expressed his desire to withdraw appeals with regard to the effective dates assigned for compensable evaluations of his left arm gunshot wound residuals and his right hand shrapnel wound residuals, as well as the claim of CUE in the March 1970 evaluation of his left arm gunshot wound residuals. In July 2011 correspondence, the Veteran's duly appointed representative confirmed this desire. As the Veteran has withdrawn the appeals in accordance with 38 C.F.R. § 20.204, the Board no longer has appellate jurisdiction and can take no further action on those matters. CUE Generally, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, the current claim involves a claim for review of a prior final RO decision on the basis of clear and unmistakable error (CUE). See Parker v. Principi, 15 Vet. App. 407 (2002). As a decision considers the law and evidence at the time of the disputed decision, there is no assistance or notice which can be offered relating to the claim. Further, in light of the full grant of the benefit sought on appeal, any error with respect to VA's duties is harmless and need not be further discussed. 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. Generally, CUE exists when either the correct facts, as they were known at the time, were not before the decision makers, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a) (2009); Sorakubo v. Principi, 16 Vet. App. 120 (2002). A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Veteran contends that the March 1970 rating decision contains CUE because the RO, in assigning an evaluation for the newly service connected right hand disability, did not properly identify the Diagnostic Code applied or the criteria used in assigning an evaluation and, further, applied an incorrect standard. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Regulations extant at the time of the decision provided, as they do now, that when an unlisted disability is encountered, a Diagnostic Code is "built" by using the first two digits of the group of Codes assigned to the most closely associated body system and adding "99" to identify the rating as one by analogy. Such general Codes were intended to be combined with a Code for a specific listed condition to clearly identify the actual criteria applied, as in "5299-5155." 38 C.F.R. §§ 4.20, 4.27 (1970). The Codesheet associated with the March 1970 rating lists the right hand disability under Code 5299 only. There is no indication of which Code was relied upon by analogy to assign the noncompensable evaluation, nor are any criteria listed in the discussion narrative of the rating decision. The Board must therefore conclude that the RO made an independent judgment, without regard to any objective standard or the Rating Schedule, as to how disabling the Veteran's right hand disability was. As there is no indication that the Rating Schedule was applied, as was required by law and regulation, the Board has no choice but to find that the assignment of a noncompensable evaluation was CUE. This is not merely disagreement with the weighing of evidence or evaluation of facts; the RO cannot be found to have actually applied the law as required. Importantly, this finding means that the Board is assigning the initial evaluation of the right hand disability without regard to that assigned by the RO in 1970; that decision, in the absence of an objective standard or criteria, is entitled to no deference. At the time of the March 1970 rating decision and under current regulations, the rating schedule provided a 10 percent evaluation for amputation of the ring finger without metacarpal resection, at the proximal interphalangeal (PIP) joint or proximal thereto. A 20 percent evaluation was assigned for metacarpal resection with more than half the bone lost. 38 C.F.R. § 4.71a, Code 5155 (1970). Other Codes provided evaluations for impairment of combinations of fingers, however, they are not applicable here. Although the ring and middle fingers were affected by the shrapnel wound of the right hand, the limitation of motion of the middle finger was noted by doctors in 1969 and 1970 to be limited to a loss of 10 degrees motion at the tip of the finger. The Veteran could still make a fist, meaning his middle finger could move to within one inch of the palm. By regulation, this was not considered a disability. 38 C.F.R. § 4.71a, Codes 5220 to 5223, Note (a) (1970). Medical evidence of record at the time of the 1970 rating decision, including service treatment records and a February 1970 VA examination, demonstrated that the Veteran had sustained a traumatic amputation of the distal phalange of the right ring finger. In other words, the tip of the ring finger from the last joint to the tip was removed. In May 1969, the Veteran complained of pain in the amputation stump, and a revision of the amputation stump was performed; the VA examiner referred to this as a severing of the affected nerve. The in-service doctor stated that the amputation site, prior to revision was at the "proximal portion of the distal" phalange. In 1970, the level was described as "through the distal interphalangeal [DIP] joint area." Subsequent medical records and examinations refer to a missing distal phalange. A 10 percent evaluation is warranted under Code 5155, for the partial amputation of the right ring finger. 38 C.F.R. § 4.71a, Code 5155 (1970). The physical descriptions of the amputation indicate that, although the site was generally in the area of the DIP, and not PIP joint, the initial injury, surgical repair, and subsequent revision were to the proximal side of the DIP joint. The actual amputation site appears to be between the DIP and PIP joints. Resolving all reasonable doubt in favor of the Veteran, the disability picture presented most closely approximates that of amputation at the PIP joint as all the evidence clearly reflects that some portion of the proximal phalange was affected by the injury and treatment. ORDER The appeal for an effective date earlier than August 24, 2000, for the assignment of a 20 percent rating for gunshot wound, muscle group VI, left arm, moderate, is dismissed. The appeal for an effective date earlier than August 24, 2000, for the assignment of a 10 percent rating for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound is dismissed. The appeal for revision of a March 1970 RO decision which denied entitlement to a rating in excess of 10 percent for the award of service connection for gunshot wound, muscle group VI, left arm, moderate, on the grounds of CUE is dismissed. The claim of CUE in a March 1970 RO decision which denied entitlement to a compensable rating for the award of service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound is granted, and a 10 percent evaluation is assigned effective from December 16, 1969. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs