Citation Nr: 1309907 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-39 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether a March 5, 1971, rating decision that awarded service connection for combat injuries to include scar of left forehead, with bone plate fused to skull, but not an evaluation for loss of part of skull should be revised based on clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a claim of CUE in a March 5, 1971, rating decision. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The RO rating decision dated in March 5, 1971, when awarding service connection for combat injuries, did not award a separate evaluation for loss of skull, inner and outer tables. 2. The March 5, 1971, rating decision was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSION OF LAW The criteria for revision or reversal of the March 5, 1971, rating decision on the basis of CUE have not been met. 38 U.S.C.A. §§ 7105, 7111 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), is not applicable to the instant CUE motion for the reason that a CUE motion is not a claim or an application for VA benefits and therefore duties associated with such claims or applications are inapplicable. See 38 C.F.R. § 20.1411(c), (d) (2012). See also Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001). Legal Criteria A prior final RO or Board decision must be reversed or revised where evidence establishes CUE. 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a) (2012). CUE exists when (1) "either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied," (2) "an error occurred based on the record and the law that existed at the time the decision was made," and (3) "had the error not been made, the outcome would have been manifestly different." Grover v. West, 12 Vet.App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)). The benefit-of-the-doubt rule of 38 U.S.C.A. § 5107 (West 2002) does not apply to a Board decision on a motion to revise based on CUE. 38 C.F.R. § 20.1411(a) (2012). Factual Background The Veteran served in Vietnam and sustained shell fragment injuries to his skull, left frontal, in April 1969. He underwent surgery. A bone graft from his right hip was taken and he underwent bone cranioplasty of the left frontal area with the insertion of a bone plate. The Veteran filed a claim for VA compensation in December 1970. Report of VA neuropsychiatric examination dated in January 1971 reflects the history of injury and noted that he had a bone plate inserted "into the skull a little larger than the size of a silver dollar." The examiner found no neurological disorder at this time. A psychiatric diagnosis was rendered for "Chronic brain syndrome, post-traumatic, fracture of left frontal area of skull with bone plate inserted without psychosis and without any evidence of psychiatric manifestations on present examination." An x-ray study dated in January 1971 reflects as follows: Reveals the residual of a 4 x 5 cm. area which is postoperative with four wire loops holding a bone plate in place and while the area is of lessened density, the borders appear to be fused with the skull and there is no evidence of localized absorption or retraction. There is no apparent mid-line displacement of the partially calcified pineal body. There would appear to be posttraumatic deformity and obliteration of the left maxillary paranasal sinus. VA eye examination dated in January 1971 diagnosed "Partial incomplete 3rd nerve paresis, internal and external both. The disability in this case is that of an individual whose eyes continuous diplopia in all quadrants, except when looking straight ahead." In a March 5, 1971, rating decision, the RO in Lincoln, Nebraska, granted service connection for residuals of combat wounds to include diplopia with partial incomplete 3rd nerve paresis; scar of the left eye area; scar of the left forehead with bone plate fused with skull (being only residual of chronic brain syndrome with no psychosis or psychiatric manifestation); scar of the nape of the neck; and acne. VA x-ray study dated in March 1972 reflects that "Since 1-29-71, reveals no essential change in the residual of the postoperative area of the left frontal region, the bone flap measuring some 4 x 5 cm." In June 2008, the Veteran's representative submitted a motion for revision of the March 5, 1971, rating decision based on a finding of CUE. He argued that the RO should have awarded a separate evaluation for 30 percent under Diagnostic Code 5296 (1971) based on an intermediate area of loss of skull, both inner and outer tables. In December 2008, the Veteran's representative argued that the insertion of a bone plate into the Veteran's skull was analogous to an amputee receiving a prosthesis and, thus the Veteran should be compensated for the loss of skull without regard to its replacement with bone from a hip graft. In February 2013, the Veteran's representative argued that a separate rating based on loss of skull is warranted because the Veteran lost part of his skull from his combat injury to the left frontal skull resulting in a 4 x 5 centimeter defect per his 1971 VA examination. He further argues that, although bone grafting was completed, the Veteran had had loss of skull. Analysis Having carefully reviewed the record extant at the time of the Lincoln, Nebraska, RO's March 5, 1971, rating decision, the Board finds that revision of that decision based on CUE is not warranted. The Veteran's representative has raised a motion for CUE in a March 5, 1971, rating decision that, when awarding service connection for combat injuries, did not award an evaluation for loss of part of skull under Diagnostic Code 5296 (1971). Under Diagnostic Code 5296 (1971), loss of part of skull, inner and outer table, is rated from 10 percent to 80 percent depending on the amount of skull loss. 38 C.F.R. § 4.71a, Diagnostic Code 5296 (1971). As an initial matter, the Board observes that the RO did not deny service-connection for loss of part of skull nor did the Veteran raise such a claim in 1971. Notwithstanding, to the extent that a separate evaluation based on loss of skull was not awarded in the March 1971 rating decision, the Board finds that this is not CUE as the facts before the RO at that time did not show loss of part of skull as required for an evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5296 (1971). The correct facts were indeed before the RO and there is no error of law. Thus, the motion fails. The Board acknowledges the representative's theory that there was CUE because the Veteran had had loss of skull prior to the insertion of a bone graft from the hip, roughly the size of a silver dollar and/or that an original part of his skull was in fact lost permanently. However, the Board disagrees that this was CUE because the Veteran had had a bone plate inserted into the missing skull area prior to the date of his claim and there was no indication in the medical record, or other evidence, that there remained any loss of skull, both inner and out tables, following the cranioplasty with bone plate insertion, to include at the margins. Rather the evidence shows that the bone plate inserted during service had fused with the skull at the margins of the plate and, thus there was no loss of skull, both inner and outer tables on VA examination in 1971. Accordingly, the RO did not commit clear and unmistakable error when it did not assign a separate evaluation based on loss of part of skull under Diagnostic Code 5256 (1971). It cannot be said that the assignment of a separate rating for loss of skull is undebatably warranted by either the facts or law extant at the time of the 1971 rating decision. The Board has further considered the assertion that there was CUE because the bone plate was essentially analogous to prosthesis for amputated upper or lower extremity and a rating without consideration of the bone plate was required. The Board can find no authority for this assertion and, moreover, finds that the insertion of a bone plate into the skull is significantly different from a prosthetic limb. A bone plate affixed to the cranium or skull is neither moveable like an appendage with prosthesis nor removable like a prosthetic arm or leg. Also, in this case, the bone plate actually fused to the surrounding skull becoming one, as though the skull were intact, providing protection to the intercranium; whereas a prosthesis does not fuse with the amputated limb, and it's primary purpose is not to protect the content it covers but rather to provide some functional use of the extremity as existed prior to amputation. Accordingly, this argument is wholly without merit as a fused bone place is in no way analogous to a prosthesis. Accordingly, the motion fails because the March 5, 1971, rating decision was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. ORDER The motion alleging CUE in a March 5, 1971, rating decision that, when awarding service connection for combat injuries, did not award an evaluation based on loss of part of skull is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs