Citation Nr: 1200717 Decision Date: 01/09/12 Archive Date: 01/20/12 DOCKET NO. 04-12 276A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for residuals of fibrocystic disease of the breasts. 2. Entitlement to an increased evaluation for residual scar, left index finger, currently rated as 10 percent disabling. 3. Entitlement to an effective date earlier than July 11, 2009 for the award of a 10 percent disability rating for residual scar, left index finger. 4. Whether new and material evidence has been received to reopen the claim for service connection for chemical burn to the eyes with loss of tear layer, diagnosed as dry eye syndrome, and/or keratitis as secondary to service-connected pinguecula. 5. Whether new and material evidence has been received to reopen the claim for service connection for chronic otitis media with claimed mastoiditis, pain, and nausea as secondary to service-connected old perforated tympanic membrane. 6. Whether there was clear and unmistakable error (CUE) in an April 2003 RO rating decision that assigned a 30 percent disability rating for fibroid tumors, uterus with subsequent therapeutic vaginal hysterectomy. 7. Whether there was CUE in a September 2004 RO rating decision that assigned a noncompensable (0 percent) disability rating for residuals, paresthesia of the distal phalanx, left index finger. 8. Whether there was CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to July 1978, with periods of service in the Naval Reserve from October 1973 to August 1975 and from July 1978 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Previously, in a February 2004 rating decision on appeal, the RO denied a petition to reopen service connection for residuals of fibrocystic disease of the breasts. An RO hearing was held on this matter in July 2006. Upon initial consideration of this claim in February 2008, the Board revisited the matter, based upon receipt of relevant service department records. See 38 C.F.R. § 3.156(c) (2011). The Board proceeded to remand the underlying claim for service connection on its merits for additional development of the evidence, and then ordered still further development pursuant to an October 2008 remand. Then more recently, a December 2009 RO rating decision denied claims for compensable evaluations for service-connected residual scar, left index finger; and for residuals paresthesias of distal phalanx, left index finger. The Veteran appealed both determinations. Thereafter, through a June 2010 Statement of the Case on the issue of increased rating for residual scar, left index finger, the RO awarded a 10 percent evaluation, effective July 11, 2009. The Veteran continued to appeal for a still higher schedular evaluation. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). She also appealed the assigned effective date for the above increase in compensation benefits. In April 2010, the RO denied petitions to reopen service connection for a bilateral eye disorder, and chronic otitis media with claimed mastoiditis, which the Veteran also contested. Thereafter, a January 2011 rating decision denied each of the claims seeking recovery on the basis of alleged clear and unmistakable error. It warrants mention that in setting forth these claims, the Veteran did not ever specifically identify the prior RO rating decisions in question for which CUE was alleged. Generally, this is one of the requirements of pleading a valid CUE claim. That notwithstanding, in light of the extensive argumentation given on each point from the Veteran, as well as the interest in comprehensive recognition of claims raised by pro se appellants, the Board has identified through its own case history review those rating decisions that would appear to be the subject of the Veteran's CUE inquiry. See e.g., Norris v. West, 12 Vet. App. 413, 417 (1999) ("Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims."), citing E.F. v. Derwinski, 1 Vet. App. 342, 326 (1991). The Board decides several of the claims on appeal, including reopening the claim for service connection for chronic otitis media with claimed mastoiditis. Meanwhile, the underlying issue of service connection on its merits, along with that of service connection for residuals of fibrocystic disease of the breasts are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. The Veteran's residual scar of the left index finger does not meet the criteria for a greater than a 10 percent evaluation on the basis of surface area, or of other impairment (besides pain and/or instability). 2. The Veteran did not file her more recent claim for increased rating for residual scar of the left index finger until July 11, 2009, and in any event did not manifest actual symptomatology corresponding to a 10 percent rating until undergoing a March 2010 VA Compensation and Pension examination. 3. Through a May 2007 rating decision, the RO denied the Veteran's original claim for service connection for chronic otitis media with claimed mastoiditis, pain, and nausea, as secondary to the service-connected condition of old perforated tympanic membrane, resolved. The Veteran commenced an appeal of that decision, but only with regard to left ear disability. 4. Through an October 2008 Board decision, the claim for left ear disability was again denied. 5. Since then, additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claim as affecting both ears. 6. Through an October 2008 Board decision, the claim for service connection for a bilateral eye condition, including secondary to service-connected pinguecuela, was denied. 7. No additional evidence has been received which relates to an unestablished fact necessary to substantiate this previously denied claim. 8. The April 2003 RO rating decision that assigned a 30 percent disability rating for fibroid tumors, uterus with subsequent partial hysterectomy was not factually flawed or undebatably erroneous. 9. The September 2004 RO rating decision that assigned a noncompensable disability rating for residuals, paresthesia of the distal phalanx, left index finger was not factually flawed or undebatably erroneous. 10. The April 2003 RO rating decision was not factually flawed or undebatably erroneous to the extent it may have severed or reduced a protected disability rating. CONCLUSIONS OF LAW 1. The criteria are not met for an evaluation higher than 10 percent for a residual scar, left index finger. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2011). 2. The criteria are not met for an effective date earlier than July 11, 2009 for the award of a 10 percent disability rating for residual scar, left index finger. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), 5110(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2011). 3. The May 2007 RO rating decision which denied the Veteran's original claim for service connection for chronic otitis media with claimed mastoiditis, pain, and nausea, as secondary to the service-connected condition of old perforated tympanic membrane, resolved, became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.200, 20.201 (2011). 4. The October 2008 Board decision which denied the claim specifically for left ear disability became final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.1100 (2011). 5. New and material evidence has been received to reopen the previously denied claim regarding both ears. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011). 6. The October 2008 Board decision which denied the claim for service connection for a bilateral eye condition, including secondary to service-connected pinguecuela, became final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.1100 (2011). 7. New and material evidence has not been received to reopen the previously denied claim regarding a bilateral eye condition. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011). 8. The April 2003 RO rating decision that assigned a 30 percent disability rating for fibroid tumors, uterus with subsequent partial hysterectomy was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.105(a) (2011). 9. The September 2004 RO rating decision that assigned a noncompensable disability rating for residuals, paresthesia of the distal phalanx, left index finger was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.105(a) (2011). 10. The April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.105(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2011), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2011). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. Initially, several of the claims raised on appeal pertain to alleged CUE in prior RO rating decisions. The Court has held that the provisions of the VCAA do not apply to CUE claims, and irrespective of whether the decision in question was issued by the RO or Board. See Parker v. Principi, 15 Vet. App. 407 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). See also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Thus, the Board may fairly adjudicate on the merits the Veteran's claims for CUE in a prior rating decision as it involves the instant matter. Regarding the Veteran's petition to reopen service connection for chronic ear infections with mastoiditis, the Board is granting the petition to reopen, and remanding the underlying claim on the merits for further evidentiary development. Hence, a conclusive determination as to whether the VCAA duty to notify and assist was satisfied is not required at this juncture, and may be deferred pending future readjudication of the claim for service connection on its merits. While the Veteran clearly received VCAA notice concerning his petition to reopen, the Board points out only that any notice deficiency was harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). In regard to the remaining claims being decided on appeal, the RO has issued VCAA notice correspondence dated from August 2009 through July 2010 which notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). In particular, the March 2010 VCAA letter concerning the petition to reopen service connection for a bilateral eye disorder outlined the standard of "new and material" evidence to reopen the Veteran's previously denied claim. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the August 2009 VCAA notice correspondence preceded the December 2009 rating decision on appeal adjudicating the claim for increased rating for residuals scar on the left index finger, and thus met the standard for timely notice. The March 2010 VCAA letter on a petition to reopen service connection for a bilateral eye condition preceded by one month the RO rating decision denying that claim. Also, the July 2010 VCAA notice preceded the September 2010 SOC which first adjudicated the matter of an earlier effective date for a higher evaluation for left index finger scar residuals. It follows that all of VCAA notices sent in this case were timely. Meanwhile, the RO has taken appropriate action to comply with the duty to assist the Veteran. There is no indication of any outstanding VA or private medical records to obtain. The Veteran has undergone VA Compensation and Pension examination with respect to the extent of left index finger symptomatology. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). Meanwhile, in support of her claims, the Veteran provided extensive personal statements and copies of documentation pertaining to case history. She declined to testify at a hearing. There is no indication of any further relevant evidence or information which has not already been obtained. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Residual Scar, Left Index Finger A. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 4.1 (2011). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed her claim for increased rating for her scar of the left index finger on July 11, 2009. Effective October 23, 2008, VA revised the criteria for the evaluation of scars. 73 Fed. Reg. 54,710-12 (Sept. 23, 2008). Under this most recent criteria, Diagnostic Codes 7801 and 7802 continue to provide for assignment of disability evaluations on the basis of surface area of the affected scars. Diagnostic Code 7801 provides that scars other than on the head, face, or neck, that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. According to the revised version of Diagnostic Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, 20 percent rating for three or four scars, and 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code. Initially, the Veteran was scheduled to undergo a VA Compensation and Pension examination to evaluate her left index finger scar in October 2009, but apparently failed to appear for the examination appointment, as documentation to the claims file reflects. Thereafter, a VA medical examination was completed in March 2010. According to the Veteran, the original injury to the left index finger occurred in 1974 or 1975 while putting a door on its hinge. The Veteran described her symptomatology as numbness, paresthesia of the left index finger, and finger pain in the last five years. There was described a sharp and aching pain, caused by weather changes, aggravated by movement, and improved by rest and time. Frequency of exacerbations was 10 to 15 times per year, mild in severity. The Veteran further described tingling of the skin, and burning sensation. On neurologic exam, there was normal coordination. Objective examination revealed a mild decrease in range of motion in distal interphalangeal (DIP) joint and proximal interphalangeal (PIP) joint of 5 to 10 degrees for each finger joint. There was no muscle wasting or atrophy. There was an apparent lesion involving laceration of the left index finger. There was no loss of fine motor control. No major nerves were affected, just the small nerves of the finger. The color of the extremity affected was normal, and ulceration was absent. Reflexes were all normal in the left index finger. An upper extremities function test revealed normal nocioception and proprioception. The VA examiner indicated that the diagnosis had progressed to paresthesia of the distal phalanx, left index finger; and left index finger laceration with subsequent chronic pain syndrome and minimal limitation in range of motion. The stated effect of the condition on the Veteran's usual occupation and daily activities was found to be minimal. On further examination directly for scar residuals, the Veteran had an irregular scar starting at the PIP joint of the left index finger and extending distally. Measurements were approximately 3.5-cm by 0.2-cm. Texture of the skin was normal. There was tenderness in the scar on examination. There was no adherence to underlying tissue, frequent loss of covering of skin over the scar, or elevation of depression of surface contour. The scar was superficial, not deep. There was no area of induration and inflexibility of skin the area of the scar. There was no inflammation, edema, or keloid formation. There was limitation of motion of 5 to 10 degrees of flexion in DIP and PIP, although no limitation of function. Range of motion was considered sufficient for normal function. The Veteran was noted to have had periods of pain and paresthesia. The foregoing VA examination report constitutes the one source of medical evidence relevant to providing an evaluation regarding the Veteran's service-connected residuals of a left index finger scar. Having considered the evidence at hand in light of applicable rating criteria, the Board does not find any basis in the record upon which to award greater than a 10 percent disability rating for the Veteran's left index finger scar residuals. The existing 10 percent evaluation is assigned pursuant to Diagnostic Code 7804, which corresponds to a single instance of an unstable or painful scar. In order to warrant any higher disability evaluation, there would have to manifest more than one service-connected scar, and this does not happen to be the case. Turning to the remaining sources of applicable rating criteria, the scar upon the left index finger does not have the constituent surface area measurements that would otherwise qualify for a compensable evaluation under either Diagnostic Codes 7801 or 7802. This leaves for application Diagnostic Code 7805, under which a scar is to be rated upon its "other effects" (previously also denoted in earlier versions of the rating criteria, as "limitation of function"). In this instance, however, the only indication of other impairment associated with the left index finger scar is very mild limitation of motion, to the extent that it would not amount to a compensable rating when evaluated by itself. Per the VA rating schedule, under 38 C.F.R. § 4.71a, Diagnostic Code 5229, the maximum assignable evaluation anyway for limitation of motion of an index finger is 10 percent. In any event, this contemplates the presence of a one-inch gap or more between the fingertip and proximal transverse crease of the palm, or extension limited by more than 30 degrees, neither of which is shown in this instance. The only remaining functional limitation inherent in the Veteran's left index finger scar is the intermittent paresthesia, but this manifestation already is a separate service-connected disability from the scar itself, and the current inquiry is limited to the propriety of evaluation for only the scar. It follows that no higher than a 10 percent evaluation is warranted for the Veteran's service-connected scar residuals under provisions of the rating schedule. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's left index finger scar residuals presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the applicable rating criteria are thorough, and she does not manifest nor describe symptomatology outside of that criteria. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. However, the Veteran has not shown that her service-connected disability under evaluation has caused her marked interference with employment, meaning above and beyond that contemplated by her current schedular rating. Moreover, the Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for increased rating for residuals of a left index finger scar. This determination takes into full account the potential availability of any further "staged ratings" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Earlier Effective Date for Increase to 10 Percent The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. The general rule with regard to an award of increased disability compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a); Criswell v. Nicholson, 20 Vet. App. 501 (2006); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). In addition, under 38 C.F.R. § 3.157(b) once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: the report of examination or hospitalization at a VA or uniformed services medical facility, evidence from a private physician or layperson that shows the reasonable probability of entitlement to benefits, or examination reports or clinical records from State medical facilities or other institutions. The current assignment of an effective date of July 11, 2009 for the award of a 10 percent evaluation for residual scar, left index finger, is based upon the fact that the Veteran filed her most recent claim for increased rating on this particular date. When considering the evidence of record, the Board does not find grounds to assign any earlier effective date of this compensation benefit. At first analysis of the claims file, there is no pending unadjudicated claim for increased rating for left index finger scar residuals that is dated prior to July 11, 2009. The Board is fairly certain of this fact, given what is a voluminous record and that there are extensive written submissions; however, none of these appear to refer to a claim for increased rating for left index finger scar residuals prior to the July 11, 2009 date of receipt of a claim for increase. Indeed, there is in the more remote history a September 2004 RO rating decision denying an increase for the left index finger scar, which is an unappealed and now final decision, with no intermittent request for increased rating filed since that earlier decision. The date of claim having been established, the Veteran could still potentially qualify for increased compensation benefits up to one-year prior to the date of claim. 38 C.F.R. § 3.400(o)(2). However, the objective evidence of record does not support any earlier effective date on this basis, since the file is devoid of any concrete evidence regarding treatment for, or evaluation of the Veteran's scar. Indeed, the first point at which a painful scar was conclusively shown was not until the March 2010 VA Compensation and Pension examination. Effectively this means that the RO's decision to award July 11, 2009 as the applicable effective date was technically a greater benefit than required under law. Regardless, there is no factual basis to now assign any earlier effective date than July 11, 2009. Accordingly, the Board is denying the claim for an earlier effective date for increased rating for residuals of a left index finger scar. The law governing assignment of effective dates is binding in this case. See 38 U.S.C.A. § 7104(c). The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Petitions to Reopen A. Chronic Ear Infections with Mastoiditis Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). A July 2007 RO rating decision denied the Veteran's claim for service connection for chronic otitis media with claimed mastoiditis, pain, and nausea, as secondary to the service-connected condition of old perforated tympanic membrane, resolved. In so finding, the RO relied heavily upon the medical conclusion of a May 2007 VA examination by an otolaryngologist, determining that neither the chronic pain claimed nor the history of chronic ear infections (both of which were undocumented) were in any way due to a tympanic membrane perforation (itself also undocumented) in military service. The VA examiner had based this conclusion upon a claims file review, as well review of a more recent CT scan that appeared to rule out mastoiditis. Absent competent medical evidence of record that a chronic ear infections and/or mastoiditis developed secondarily to a service-connected tympanic membrane perforation, the RO denied the claim. The Veteran filed a timely Notice of Disagreement (NOD) with this decision, but notably, only as to the denial of service connection for a disability of the left ear. The July 2007 rating decision became final and binding on the merits regarding right ear disability. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.201. Thereafter, the Board issued an October 2008 decision denying service connection for a left ear disorder, comprised of chronic otitis media and mastoiditis, secondary to service-connected perforated eardrum. The Board placed heavy probative weight upon both October 2003 and May 2007 VA examiner's reports that found that a single episode of tympanic membrane perforation, since resolved, would not likely have precipitated the occurrence of the claimed left ear disabilities for which the Veteran now sought service connection. On this basis, the Board denied the Veteran's claim. The Veteran did not file an appeal to the Court, and therefore the Board's decision remained a final issuance. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding the claimed disability, the Board recognizes the October 2008 Board decision as the last final denial of the claim as it pertains to the left ear, and the July 2007 RO rating decision the last such final denial pertaining to disability of the right ear. See generally, Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen). For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). The reasoning upon which the Veteran's claim for ear pathology (above and beyond existing recognized service-connected disability) was denied, consisted of the lack of competent medical evidence etiologically linking chronic ear infections and/or mastoiditis to the already service-connected tympanic membrane perforation. Consequently, the claim for secondary service connection was denied. Since then, however, the claims file reflects receipt of August 2009 correspondence from Dr. D.E.M., private physician, stating that he had recently seen the Veteran and she continued to have pain in the left ear and face all of the time. The physician noted a past history of perforated eardrum as well as chronic mastoiditis, and stated he had looked at a recent CAT scan which corroborated this. The physician then indicated that "I feel it is, at least as likely as not, related to prior perforation as well as chronic mastoiditis." The Board acknowledges that this pronouncement from the physician is hardly clear, but interpreted in a light favorable to the Veteran does seem to acknowledge a causal relationship between a perforated eardrum, as the known service-connected disability, and the Veteran's claimed condition of mastoiditis. This is particularly the case taking into account the duty to assign credibility to evidence at the reopening stage. See Justus, supra. Therefore, evidence that is "new and material" to establishing the Veteran's claim has been received. Accordingly, the Board concludes that the criteria for reopening a claim for service connection for mastoiditis, secondary to a ruptured tympanic membrane, are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The readjudication of this claim is deferred, pending completion of the development procedures requested in the remand section below. B. Bilateral Eye Condition The Board's decision of October 2008 denied the Veteran's claim for service connection for a bilateral eye disorder. The issue as considered in its entirety was service connection for a bilateral eye condition, claimed as loss of tear layer with chronic keratitis, with pterygium of the right eye, and including as the result of in-service chemical exposure or secondary to service-connected pinguecula. In its review of the evidence, the Board indicated consideration of the fact that there was documentation of a 1977 incident of accidental chemical exposure during service (though no other objective indication of eye problems therein). However, the Board placed heavy emphasis upon the probative weight of an October 2003 VA medical examination and opinion which determined that the Veteran's incident of chemical exposure was not at least as likely as not the cause of the dry eyes, and further that her right eye was also unrelated to the chemical exposure. The Board considered this to be the most well-supported and definitive medical opinion on file, over two private medical opinions that had expressed a possible linkage between eye disability and chemical exposure, but did so only in tentative language and based on only the Veteran's own reported statements of injury rather than actual review of the claims file. Meanwhile, the Board observed that there was nothing to suggest that service-connected pinguecula, a totally inactive condition now for several years, had an impact upon the manifestation of any other eye disorder. Hence, the Board denied the Veteran's claim for lack of causal nexus between a current disability and military service, and lack of a connection between the claimed condition and any service-connected disability. The Veteran did not appeal therefrom to the Court, and hence the Board's decision became final. Once again, the standard the Board must utilize is whether "new and material" evidence has been received to reopen this claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The element of the Veteran's claim which was previously found deficient was that of a causal nexus -- namely, that the claimed disability had a causal link to military service, or any linkage to a service-connected disability. Reviewing the additional evidence associated with the claims file since the Board's October 2008 decision upon this matter, while there are numerous volumes of documentation that have been added to the record, nearly all of this additional received evidence comprises the written correspondence from the Veteran. Inasmuch as these statements raise new arguments based upon the existing medical evidence, this in itself does not change the fact that the medical basis upon which to adjudicate the claim fundamentally is no different. See e.g., Untalan v. Nicholson, 20 Vet. App. 267 (2006) (the presentation of new arguments based on evidence already of record as of the previous decision does not constitute new evidence). Several of the Veteran's assertions through her correspondence are also cumulative of existing arguments already of record. Where there is a notable deviation from this pattern of written correspondence associated with the file, it comprises medical evidence clearly in support of other claims on appeal, such as that involving an already service-connected left index finger scar, or the matter of service connection for an ear disability. Significantly, though, none of the newly received items of evidence pertain directly to the question of entitlement to service connection for a bilateral eye condition. Accordingly, in the absence of any pertinent evidence with a bearing upon the likely etiology of a bilateral eye disorder, new and material evidence has not been received to substantiate the reopening of the Veteran's claim. As the criteria for new and material evidence to reopen service connection for this condition have not been met, the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). CUE Claims As a general matter, previous RO decisions that were not timely appealed are final and binding on the veteran based on the evidence then of record and generally will be accepted as correct in the absence of CUE. The prior decision will be reversed or amended only where the evidence establishes this error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE is defined as a very specific and rare kind of error. "It is the kind of error, of fact or 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. Thus, 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." See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has indicated that a three-pronged test is used to determine whether CUE was in a prior decision: (1) it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and 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 the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). In order for an alleged error to constitute CUE, it must have consisted of an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts, not merely misinterpretation of the facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). A claim of CUE on the basis that the previous adjudication at issue "improperly weighed and evaluated the evidence" does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. A breach of VA's duty to notify and assist likewise does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). This includes situations when the RO is alleged to have breached the duty to assist a veteran in obtaining relevant service medical records that may render a prior rating decision non-final, or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc) (overruling Hayre v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999)). However, the failure to apply a relevant law or regulation is an appropriate subject for a claim of CUE. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 329 (1999), citing Olson v. Brown, 5 Vet. App. 430, 433 (1993). A. Evaluation for Fibroid Tumors The Veteran contests the April 2003 RO rating decision to grant 30 percent, but no higher for her service-connected fibroid tumors, uterus with subsequent therapeutic hysterectomy. The essential argument by which she sets forth this contention is that a 30 percent evaluation compensated her merely for the surgical removal of her uterus, whereas she maintains that in actuality her ovaries also required removal. The distinction is significant for VA compensation purposes, since under the VA rating schedule at 38 C.F.R. § 4.116, Diagnostic Code 7618, removal of the uterus warrants the long-term assignment of a 30 percent rating (after expiration of a mandatory three-month term of a 100 percent rating), while under Diagnostic Code 7617 removal of the uterus and both ovaries corresponds to the long-term assignment of a 50 percent rating. Reviewing the April 2003 RO rating decision at issue, the RO at that time clearly found that a higher 30 percent evaluation was warranted based on the fact that the Veteran had undergone partial hysterectomy in which her uterus was removed, but not the ovaries. On this basis, the RO assigned a higher 30 percent evaluation under Diagnostic Code 7618, effective March 3, 2003, the date of the Veteran's claim for increase. (Incidentally, a few years later, the RO upon its own favorable determination of prior CUE assigned an earlier effective date of September 1, 1980 for the award of a higher 30 percent evaluation, pursuant to an August 2005 rating decision. This however is not a material fact to the instant claim.) The Veteran's allegation of CUE would appear to be that the correct factual background was not before the RO when formulating its April 2003 rating decision, in that the available evidence had it been properly considered would have manifestly shown that the Veteran did have her ovaries removed as a matter of medical procedure. Considering the information and evidence in the claims file as it appeared to the RO in April 2003 however, every available indication is that the Veteran underwent a partial hysterectomy. The Board first bases this finding upon a December 1980 military reserve annual physical, which expressly denoted that the Veteran had undergone a "partial hysterectomy in 1980." Apparently this procedure was not undergone through VA or military medical providers. Measures to obtain the corresponding private treatment records would not be warranted here, given that a CUE claim is decided wholly on the record as it was at a particular point in time, and moreover, the breach of duty to assist cannot has been found not to rise to the level of CUE. Considering in greater depth the record in furtherance of resolving this issue, the Veteran's record of VA outpatient treatment in April 2000, and again in June 2001 indicated that by her own reported history she had not had the ovaries removed. A March 2003 VA gynecological treatment record again denotes that the Veteran had undergone a partial hysterectomy. During a March 2003 VA Compensation and Pension examination, the Veteran also stated that after her hysterectomy both ovaries had been left in. Based on the foregoing, it is evident why the RO reached the conclusion set forth through its April 2003 rating decision that the Veteran had undergone a partial hysterectomy. This conclusion was fully supported by the available medical evidence, and there was nothing at that time to suggest any different outcome. By all indication, the Veteran had retained both ovaries. Thus, there was no possible CUE in the RO's decision at that time to apply Diagnostic Code 7618 in reaching the unavoidable legal conclusion that a 30 percent disability evaluation was warranted. Accordingly, the Board finds that the RO's April 2003 rating decision was not factually flawed or legally erroneous, and therefore was not the product of CUE. This having been determined, the Board is also fully cognizant of the fact that there is far more recent medical evidence which calls into question whether there has been removal of the ovaries at some future point, which was dated after the issuance of the April 2003 rating decision examined above. This new evidence was not ever before VA adjudicators when considering the matter in 2003, and thus the failure to consider such findings does not factor into the determination on claiming CUE in that prior decision. Supposing that instead the Veteran were contesting the RO's December 2009 rating decision, a decision which continued the assignment of a 30 percent evaluation for fibroid tumors with removal of the uterus, then the new evidence might have some role to play in consideration of a CUE claim. The Board will consider this possibility as well to review any further potential basis of recovery. In recently received evidence, the July 2009 correspondence of Dr. L.S.M., private physician, states: [The Veteran] had reviewed her own medical records from the military. She had surgery to remove her uterus and ovaries -- a complete hysterectomy. This was completed for a diagnosis of leiomyomas with bleeding irregularities. Thereafter, in August 2009 the Veteran underwent a VA Compensation and Pension examination for gynecological evaluation, which in part found, after conducting an ultrasound, that the ovaries were not present. The RO's December 2009 rating decision upon review of the foregoing, continued to deny benefits at the 50 percent level. As to the private physician's letter, the RO weighed this correspondence, but ultimately discounted its probative value because of the fact that the alleged removal of ovaries was simply the secondhand reiteration of reported medical history from the Veteran. More weight was initially placed upon the August 2009 VA exam, which finally showed objective evidence of removal of the ovaries. In the view of the RO, however, there was still no reason to show that the documented fibroids in service and subsequent partial hysterectomy was the same cause for undergoing total hysterectomy at a later point. The RO observed that it did not have the treatment records showing why removal of the ovaries was undergone. (It is noted that the RO's rating decision prompted the Veteran to identify at what medical facility she underwent removal of the ovaries so that VA could obtain the treatment records. There is no indication of a response from her yet on this subject.) Considering the December 2009 RO rating decision, the Board cannot find that this decision either is the product of undebatable error. Here, the question is not one of a factual error, but moreso one of whether the RO made a legal error in not applying Diagnostic Code 7617 to assign a 50 percent rating. The Board considers the RO to have been justified and proper in requiring evidence that not only did the ovaries undergo removal, but that they underwent removal due to service-connected disability. What appears to be uncontroverted from the original service records (barring some clear mistake in service, and subsequent misreporting four times from the Veteran herself) is that the original procedure was a partial hysterectomy, and this was followed some years later by removal of the ovaries. Unfortunately, there is no way of knowing why the ovaries were eventually removed, and whether it was due to the service-related fibroid tumors. Generally, as a principle for application when service-connected and nonservice-connected symptomatologies overlap is that absent medical evidence to distinguish between the two, all nonservice-connected symptomatology shall be attributed to service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this instance, however, what is being considered is whether disability affecting an entirely different organ of the body is attributable to the same cause as service-connected disability, as opposed to service-connected and then nonservice-connected disability alternately affecting the same body region. The question is almost akin to whether a new disability should be service-connected. As such, there would be required proof that the same underlying cause for the partial hysterectomy also required removal of the ovaries, i.e., that this likewise was from the presence of fibroid tumors or a directly related condition. If nothing else, the Board cannot find that the RO was deficient in making the judgment that such proof was required. This is because weighing of the facts needed to meet a particular legal standard cannot be considered to rise to the level of CUE. As a result, the December 2009 RO rating decision likewise cannot be found to contain CUE, even given the more recent receipt of evidence indicating factors that would initially suggest application of the criteria for an increased rating. B. Evaluation for Paresthesia of Left Index Finger The RO through issuance of a September 2004 rating decision granted service connection for residuals paresthesia of the distal phalanx, left index finger, with the assignment of a noncompensable evaluation, effective November 24, 2003. This represented a separate compensable rating from the existing service-connected scar pertaining to injury of the distal phalanx, left index finger. The rating criteria applied consisted of 38 C.F.R. § 4.124a, Diagnostic Code 8599-8514, for an unspecified neurological disability rated by analogy to impairment to the musculospiral (radial) nerve. The basis for arriving at this decision consisted of findings from an August 2004 VA medical examination. At that time, the Veteran reported that she had cut her left index finger in 1976 while in service, and had received a 1.5-inch laceration over the ulnar aspect of the left index finger. She stated that since then the area of injury ached daily. She had had five stitches placed in it. She mentioned current pain with flexion. According to the Veteran, after the injury the entire finger was numb, but then over the last 10 years most of the numbness had resolved except the tip of the finger, which was the distal phalanx. She said the tip was always numb and it hurt. Weather changes and activity caused flare-ups and many times the flare-ups did not resolve and required use of pain relievers. She mentioned some difficulty using the tip of the finger with fine dexterity but otherwise, the left index finger did not cause any functional impairment. She was right-handed. On physical exam, there were no left index finger abnormalities. Grasps were equal and she had good muscle strength. No muscle wasting was noted about the left hand. The examiner checked for light touch, pinprick and monofilament exam and over the volar surface of the entire distal phalanx, and there was moderate loss of sensation. Capillary refill was good. She could flex the second metacarpophalangeal joint from 0 to 90 degrees, the proximal interphalangeal joint from 0 to 80 degrees, and the distal interphalangeal joint from 0 to 60 degrees. She could completely extend the joint. The diagnosis given was old laceration to the left index finger, which had left the Veteran with longstanding permanent paresthesias, most likely secondary to small digital nerve damage due to the laceration. According to the examiner, he confirmed that there was constant numbness in the left index finger since the injury, although all sensation has recurred except to the tip of the finger. In evaluating the severity of the paresthesia, this appeared to be moderate because it was continuing and ongoing but was not interfering with what the Veteran did daily on a routine basis. Under Diagnostic Code 8514, a 20 percent evaluation is assigned for incomplete paralysis of the radial nerve of the minor limb if found to be mild or moderate, and a 40 percent rating is assigned if found to be severe. Complete paralysis will be evaluated as 60 percent for the minor limb for drop of the hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger, or where the patient cannot extend the hand at the wrist, extend the proximal phalanges of the fingers, extend the thumb, or make lateral movement of the wrist, or where there is supination of the hand, weakened extension and flexion of the elbow, or where loss of synergetic motion of extensors seriously impairs the hand grip, or where total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a. Given what the rating schedule requires to meet the provisions for the minimum compensable 20 percent rating for impairment to the radial nerve, the Board finds that the RO reached a justifiable outcome in evaluating the Veteran's service-connected disability as noncompensable. Essentially, the parethesias of the left index finger which have been diagnosed by objective exam were limited in full to the fingertip. It is readily apparent that Diagnostic Code 8514 applies to instances of neurological impairment to an entire hand, involving the thumb, finger, and even extending to the wrist. This much is clear from reviewing the criteria for the maximum rating of 60 percent for complete paralysis, under which there would have to be loss of synergetic motion of extensors that seriously impairs the hand grip, or even a condition where the individual cannot extend the hand at the wrist. Obviously what is at issue here is entitlement to the minimum rating of 20 percent, but the criteria for a 60 percent rating nonetheless provides guidance, in that a 20 percent rating would reasonably encompass service-connected disability in the same general affected areas, albeit to a lesser degree of neurological severity. The RO's interpretation that Diagnostic Code 8514, even at its lowest available 20 percent rating, effectively involves disability of most if not all of the hand, therefore is a well-supported and logical one. At the very minimum, if the Veteran's entire left index finger were drastically affected, that might imply some compensable disability. Again, however, the symptomatology described affected only the fingertip. The Board recognizes that there has been a clinical neurological diagnosis here and that the VA examiner insofar as the minimal area affected did categorize the level of severity as moderate, but still finds that the RO's interpretation of the rating criteria as permitting no more than a noncompensable rating to be a reasonable determination. Nor for that matter do any of the other potentially applicable diagnostic codes for rating peripheral nerve injuries found at 38 C.F.R. § 4.124a provide a more likely basis for recovery, as each of them would appear to designate injury to large affected joint areas rather than an isolated portion of a single digit. Consequently, the Board concludes that there was no obvious misapplication of the law inherent in the September 2004 rating decision. Moreover, the RO's interpretation of Diagnostic Code 8514 in light of the available evidence is better considered as a question of application of law to fact, an area involving weighing of the evidence, which under VA law the Board cannot consider anyway as a basis for claimed CUE. Accordingly, there was no undebatable error within the RO's September 2004 rating decision assigning a noncompensable evaluation for left index finger paresthesias. C. Alleged Severance or Reduction of a Protected Disability Rating The Veteran has next set forth as a contention of CUE insofar as the RO's handling and assignment of separate ratings for several service-connected disabilities since first being awarded disability compensation, which can best be summarized as an allegation of CUE with the April 2003 RO rating decision that increased from 10 to 30 percent the evaluation for fibroid tumors, uterus with subsequent partial hysterectomy, effective March 3, 2003. Also relevant, that same rating decision further granted entitlement to special monthly compensation (SMC) based on loss of use of a creative organ, effective March 3, 2003; and continued the assignment of noncompensable evaluations for service-connected pinguecula and left ear hearing loss. The Veteran raises two main contentions, which the Board has considered after carefully reviewing her arguments in this regard. The first allegation is that the RO had previously assigned a single 10 percent disability rating in 1979 that by itself covered all service-connected disability from the fibroid tumors, left ear hearing loss, and pinguecula. By the Veteran's account, when in April 2003 the RO increased the rating for fibroid tumors from 10 to 30 percent, it ignored the 10 percent evaluation already in effect that included the ear and eye disabilities, effectively reducing the evaluations for those additional disabilities back down to noncompensable. It is from this set of circumstances that the Veteran claims the improper reduction of a protected disability rating. See generally 38 C.F.R. § 3.951(b) (a disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud). Considering this case objectively however, the Board cannot ascertain any blatant or even implied misapplication of law. The record clearly reflects that through a November 1978 rating decision, the Veteran was granted service connection for left ear hearing loss and pinguecula and assigned a noncompensable evaluation for each condition. Both service-connected disabilities remained evaluated at the noncompensable level for the next 25 years. (Indeed, to this date both conditions remain noncompensable.) While in a February 1979 rating decision service connection was granted for fibroid tumors of the uterus, and a 10 percent evaluation assigned, this was entirely for the fibroid tumors. At no time does the record reflect or otherwise suggest that the 10 percent was intended to compensate the Veteran in 1979 for all of her service-connected disabilities jointly. The argument that the Veteran had an entitlement to continued compensation for left ear and eye service-connected conditions therefore is not compelling. The second argument the Veteran advances is that under the April 2003 rating decision she was entitled to two 30 percent disability rating awards, stating that in addition to the 30 percent evaluation assigned pursuant to Diagnostic Code 7618, and there was also the award of special monthly compensation for loss of use of a creative organ which should have entitled her to receive an additional 30 percent. The Board cannot find legal basis or precedent anywhere to support such contention. Instead, the Veteran is directed to the provisions governing assignment of SMC found under 38 U.S.C.A. § 1114(k) which already provide for additional compensation but at a specific designated rate, in tandem with existing awards of VA disability compensation. Nowhere in the law and regulations is there stated that an award of SMC merits a duplicative payment of VA compensation for an existing service-connected disability. Nor is there any discretion to pay additional benefits on the basis averred by the Veteran. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). In the absence of any credible basis upon which to ascertain legal error within the April 2003 RO rating decision in its assignment of disability evaluations reflective of numerous service-connected disabilities, including taking into account an award of SMC, the Board cannot issue a finding of CUE in the foregoing decision. ORDER An increased evaluation for residual scar, left index finger, currently rated as 10 percent disabling, is denied. An effective date earlier than November 24, 2003 for the grant of service connection for residual scar, left index finger, is denied. New and material evidence having been received, the petition to reopen the claim for service connection for chronic otitis media with claimed mastoiditis, pain, and nausea as secondary to service-connected old perforated tympanic membrane, is granted. The petition to reopen the claim for service connection for chemical burn to the eyes with loss of tear layer, diagnosed as dry eye syndrome, and/or keratitis as secondary to service-connected pinguecula, is denied. The claim for CUE in an April 2003 RO rating decision that continued the assignment of a 30 percent disability rating for fibroid tumors, uterus with subsequent therapeutic vaginal hysterectomy, is denied. The claim for CUE in an September 2004 RO rating decision that assigned a noncompensable disability rating for residuals, paresthesia of the distal phalanx, left index finger, is denied. The claim for CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating is denied. REMAND The Board is remanding the underlying claim for service connection for chronic ear infections and mastoiditis for de novo (on the merits) consideration and readjudication. At this stage, further development of the claim is likewise required. There is now an August 2009 private physician's opinion stating as follows: I saw [the Veteran] on August 3, 2009, and she continues to have pain in the left ear and face all the time. She does have a past history of a perforated eardrum as well as chronic mastoiditis. I have looked at a recent CAT scan, which collaborates this. I feel it is, at least as likely as not, related to prior perforations as well as chronic mastoiditis. At this time, I do not recommend surgery, but pain management could be entertained in the future. The preceding opinion does not establish the Veteran's claim, as it simply lacks sufficient clarity to do so, but does on its face suggest a connection between chronic mastoiditis and service-connected tympanic membrane perforation. There are several areas in which a new VA examination would help advance a reasoned decision on the Veteran's claim -- by confirming whether the Veteran does still indeed have mastoiditis, and if so, then checking a VA administered CAT scan (as did the above opinion) for insight into the etiology of her condition, and finally by offering a conclusive medical opinion on all of the foregoing. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4) (2011) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). As to the claim for service connection for residuals of fibrocystic disease of the breasts, the Board's prior October 2008 decision/remand specifically remanded that claim for the Veteran to undergo a VA Compensation and Pension examination to determine whether this condition, which pre-existed service entrance, nonetheless underwent measurable aggravation therein. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Board directed that the VA examiner give consideration of the theory that the Veteran's uterine fibroids disorder was part of the same overall process as her fibrocystic breast disorder, and constituted evidence that the breast disorder advanced beyond the natural progression of the disorder during service. Unfortunately, the Board has no indication that the requested VA examination was ever completed. Under VA law, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, a new such VA exam must be scheduled. Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA otolaryngological examination to ascertain the nature and likely etiology of claimed chronic ear infections and mastoiditis. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail, to particularly include a VA administered CAT scan for the presence of claimed mastoiditis. The VA examiner is then requested to provide responses to the following inquiries: * Determine whether the Veteran currently manifests pathology of one or both ears, including that diagnosed as chronic ear infections, and/or mastoiditis. * Provided there is a diagnosis of some current ear disability, then please determine whether the diagnosed condition(s) is/are at least as likely as not (50 percent or greater probability) due to service-connected tympanic membrane perforation. The opinion should consider both initial causation of ear pathology by tympanic membrane perforation, and the possibility that ear pathology was chronically aggravated by the same. (For purposes of this analysis, chronic aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process.) * In rendering opinions to the foregoing inquiries, it is requested that the VA examiner specifically indicate his review and consideration of already existing October 2003 and May 2007 VA otolaryngological examiners' opinions, as well as the August 2009 statement of Dr. D.E.M. The examiner should include in the examination report the rationale for (or an explanation of the reasons he or she reached) any opinion expressed. 2. The RO/AMC should schedule the Veteran for a VA examination to ascertain the likely etiology of claimed residuals of fibrocystic disease of the breasts. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should then provide an opinion as to whether the Veteran's diagnosed fibrocystic disease of the breasts, which pre-existed her active duty service, underwent measurable in-service aggravation (i.e., a permanent worsening in severity, not due to the natural disease process). In providing the requested opinion, the VA examiner should comment upon the etiologic relationship, if any, between the Veteran's fibrocystic disease of the breasts and her service-connected uterine disease, to include whether the uterine disorder is evidence that the breast disorder advanced beyond the natural progression of the disorder during service. The examiner should include in the examination report the rationale for (or an explanation of the reasons he or she reached) any opinion expressed. 3. The RO/AMC should then review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO/AMC should readjudicate the claims on appeal for service connection for chronic ear infections and mastoiditis, and for residuals of fibrocystic disease of the breasts, in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claims. Her cooperation in VA's efforts to develop her claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs