Citation Nr: 1319883 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-47 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether a November 17, 1965, decision in which the RO upheld the assignment of an initial, noncompensable rating for residuals of a chipped fracture of the right index finger involved clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1958 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Here, the Veteran has alleged CUE in the RO's August 12, 1965, rating decision which awarded service connection for residuals of a chipped fracture of the right index finger and assigned a noncompensable rating, effective April 29, 1965. The Board notes that, subsequent to this rating decision, based on correspondence from the Veteran, the RO issued decisions on August 31, 1965, and November 17, 1965, which continued the findings of the August 12, 1965, decision. Following notification of the November 1965 decision, the Veteran did not initiate an appeal, and the RO took no further action on his claim, such that the November 1965 decision became final. The practical effect of this is that the August 12, 1965, rating decision, for which the Veteran is alleging CUE, was subsumed by the subsequent RO decisions. However, in order not to frustrate the Veteran's claim over a procedural technicality, the Board will construe his CUE claim as directed toward the November 17, 1965, decision. In January 2008, the Veteran's claim was recharacterized as "residuals, chipped fracture, right index and long fingers," and the rating was increased to 10 percent, effective July 13, 2007. As a final preliminary matter, the Board notes that it has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Service connection for residuals of a chipped fracture of the right index finger was granted in an August 12, 1965, rating decision and assigned a noncompensable rating, effective April 29, 1965. After an exchange of correspondence between the Veteran and the RO, the RO confirmed the August 12, 1965, decision on November 17, 1965; the decision became final in November 1965. 2. The portion of the November 17, 1965, decision which upheld the assignment of an initial, noncompensable rating for residuals of a chipped fracture of the right index finger contained CUE in that it failed to apply the correct diagnostic code. CONCLUSION OF LAW The portion of the November 17, 1965, decision which upheld the assignment of an initial, noncompensable rating for residuals of a chipped fracture of the right index finger contained CUE; a 10 percent evaluation is warranted from April 29, 1965, through July 12, 2007. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 4.20, 4.27, 4.71a, Diagnostic Codes 5225, 5227 (1965); 38 C.F.R. § 3.105(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the parameters of the law surrounding CUE claims (as explained in more detail below), the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed, in Board decisions (see Livesay v. Principi, 15 Vet. App. 165 (2001), or in RO decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)). As noted in Livesay, CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. Id. 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. II. Analysis Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the United States Court of Appeals of Veterans Claims (Court) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)(en banc). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). 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 "5299-5227." 38 C.F.R. §§ 4.20, 4.27 (1965). In an August 12, 1965, rating decision the RO awarded service connection for residuals of a chipped fracture of the right index finger, and assigned a noncompensable rating under Diagnostic Code 5299-5227. In rendering this decision, the RO relied upon a June 1965 VA examination, which demonstrated that the Veteran could not make a fist with his index and middle fingers, and that the tips were 2 inches from the palmar crease. After a series of exchanges between the Veteran and the RO, the RO issued a November 17, 1965, rating decision, upholding the assignment of the noncompensable rating. Although notified of the decision later in November 1965, the Veteran did not initiate an appeal; hence, the November 17, 1965, decision is final based on the evidence of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the November 17, 1965, rating decision, the rating schedule provided a 10 percent evaluation for ankylosis of the index finger under DC 5225. Ankylosis of any other finger (besides the thumb, index and middle finger) was rated as noncompensable under DC 5227. 38 C.F.R. § 4.71a (1965). Other Codes provided evaluations for impairment of combinations of fingers, however, they are not applicable here. In February 2008, the Veteran filed the current claim of CUE pertaining to the RO's assignment of an initial, noncompensable rating for residuals of a chipped fracture of the right index finger. Specifically, the Veteran argued that the RO should have applied Diagnostic Code 5225 rather than Diagnostic Code 5227. The Veteran further argued that he was entitled to a 10 percent rating as the June 1965 VA examination relied on by the RO showed that the Veteran's fingertip was 2 inches from the palmar crease and that he could not make a fist with the finger. Based on the above facts, the Board agrees with the Veteran and finds it apparent that the RO misapplied the statutory/regulatory provisions extant at the time by assigning the Veteran a noncompensable rating for ankylosis for any other finger under DC 5227, instead of awarding a 10 percent evaluation for ankylosis of the index finger under DC 5225, which the evidence clearly established that the Veteran had at the time the RO rendered the decision in question. As this undebatable error manifestly changed the outcome of the decision at the time it was made, such a mistake constitutes clear and unmistakable error. Parenthetically, the Board notes that the Veteran's representative has also argued that the RO erred in not considering the Veteran's disability under Diagnostic Code 5003. However, that diagnostic code is only applicable where degenerative arthritis is established by X-ray findings. 38 C.F.R. § 4.71a, DC 5003 (1965). Such was not the case here, where a June 1965 X-ray report, of record at the time of the August 12, 1965, RO decision, indicated a normal right hand, and there was no medical evidence of record which otherwise indicated that the Veteran had arthritis of the right hand. ORDER The claim of CUE in a November 17, 1965, RO decision which upheld the assignment of an initial, noncompensable rating for residuals of a chipped fracture of the right index finger, is granted, and a 10 percent evaluation is assigned effective from April 29, 1965, through July 12, 2007. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs