Citation Nr: 1718489	
Decision Date: 05/25/17    Archive Date: 06/05/17

DOCKET NO. 09-40 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska


THE ISSUES

1. Entitlement to a disability rating in excess of 10 percent for residuals of sebaceous cyst removal of the bilateral earlobes. 

2. Entitlement to compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection. 

3. Entitlement to revision of the August 2005 rating decision, which denied compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection, on the asserted basis of clear and unmistakable error (CUE).


REPRESENTATION

Appellant represented by: John S. Berry, Jr., Attorney


ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The appellant is a veteran (the Veteran) who had active duty service from June 1986 to January 1990 and from January 1991 to March 1991. 

The issue of whether there was CUE in the August 2005 rating decision comes before the Board of Veterans' Appeals (Board) from an October 2016 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal of that issue originated from a May 2009 rating decision of the RO in Lincoln, Nebraska. The remaining issues come before the Board from March 2014 and December 2015 rating decisions of the Lincoln RO.

In December 2015 decision, the Board denied the issue of whether there was CUE in the August 2005 rating decision. The Veteran appealed that decision to the Veterans Court. In an October 2016 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's December 2015 decision and remanded the issue of whether there was CUE in the August 2005 rating decision to the Board for additional development consistent with the Joint Motion.

In December 2015, the Board also reopened the claim of entitlement to compensation under 38 U.S.C.S. § 1151 and remanded it the RO. That issue was not subject to action by the Veterans Court as no final decision had been reached. That issue has since been returned to the Board for further appellate action. 

The issue of entitlement to an increased disability rating for residuals of removal of sebaceous cysts of the bilateral earlobes was developed as an appeal of a rating reduction claim, resulting from a December 2015 RO rating decision which reduced the rating from 10 percent to 0 percent. However, during the course of the appeal, the rating of 10 percent was restored by the RO. Therefore, the rating restoration matter is fully resolved. In its decision, the RO determined that the appeal also included an increased rating claim, and the issue certified by the RO is limited to entitlement to a disability rating for residuals of sebaceous cysts of the bilateral earlobes in excess of 10 percent. 

FINDINGS OF FACT

1. For the period on appeal, the Veteran's sebaceous cysts of the bilateral earlobes have been manifested by no more than 1 characteristic of disfigurement. 

2. Although additional disability resulted from the January 17, 2002, rib resection surgery, in the form of injury to the long thoracic nerve, the proximate cause of the additional disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment; and, the proximate cause of the disability was reasonably foreseeable. 

3. To the extent of any errors in the August 2005 rating decision, the record does not demonstrate that the outcome of the claim would have been manifestly different but for any such error.


CONCLUSIONS OF LAW

1. The criteria for a disability rating higher than 10 percent for sebaceous cysts of the bilateral earlobes have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2016).

2. The criteria for compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.358, 3.361 (2016).

3. The criteria for revision of the August 2005 final RO rating decisions on the basis of CUE have not been met. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating Claim

The Veteran is seeking a disability rating in excess of 10 percent for service-connected residuals of removal of sebaceous cysts of the bilateral earlobes. 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

In a November 2013 rating decision, the RO granted service connection for residuals of removal of sebaceous cysts of the bilateral earlobes and assigned an initial rating of 10 percent under Diagnostic Code 7800, effective March 28, 2013. The current appeal arises from an increased rating claim received at the RO on December 29, 2014. During the course of the appeal, the RO reduced the rating to 0 percent in a December 2015 rating decision, effective March 1, 2016, but subsequently restored the 10 percent rating from the same effective date. 

Diagnostic Code 7800 applies to scars of the head, face, or neck. An 80 percent rating is available under that code with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. A 50 percent rating is available with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 30 percent rating is available with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. A 10 percent rating requires one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800.

The 8 characteristics of disfigurement are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7800. 

The report of a VA examination dated October 2013 reveals a long-standing diagnosis of sebaceous cysts. The examiner found that the current disability was limited to scars on the earlobes with no systemic manifestations. There were no benign or malignant neoplasm or metastases. The scars were described as palpable nodules measuring 1/2 centimeter on the right and 1/4 centimeter on the left. The Veteran had no history of treatment or medications. There had been no episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The scars covered less than 5 percent of total body area and less than 5 percent of exposed area. The examiner assessed no impact of the disability on his ability to work (VBMS record 08/25/2014).

The Veteran filed for an increased rating in December 2014. The RO obtained a new examination in February 2015. The examiner diagnosed healed scars of the earlobes. The scars were described as too well healed to be measured with the naked eye. The examiner assessed that the scars were not painful or unstable, or with frequent loss of covering of skin over the scar. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was no abnormal pigmentation or texture of the head, face, or neck. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. There was no limitation of function or impact on the ability to work. 

On the basis of the February 2015 examination, the RO proposed to reduce the rating to 0 percent in a June 2015 rating decision. In December 2015 decision, the RO reduced the rating to 0 percent effective March 1, 2016. The current appeal ensued. 

The RO obtained a new examination in April 2016. The Veteran informed the examiner that his scars swell up and drain pus daily and scab at least every 3 months. The examiner found no scarring or disfigurement of the head, face, or neck. The examiner noted no history of treatment with topical or oral medications, or any other treatment. The examiner assessed no debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The earlobes were examined, revealing no swelling or erythema. The examiner noted that no scabbing and that no pus drained. The left earlobe had a slight bump about 0.5 centimeters in diameter at the base of the left earlobe of uncertain clinical consequence. The right ear also was not draining. There was no swelling, erythema, or scabbing. No bump on the right ear was appreciated. The examiner noted that the Veteran showed a picture of the left earlobe on the Veteran's phone, which showed some swelling and redness. 

In a May 2016 rating decision, the RO restored the rating of 10 percent for sebaceous cysts of the bilateral earlobes but denied any higher ratings. 

After a review of all of the evidence, the Board finds that a disability rating in excess of 10 percent is not warranted. 

The evidence does not demonstrate visible or palpable tissue loss or gross distortion or asymmetry of the ears. There is also not more than one characteristics of disfigurement, that being swelling noted in photographs by the April 2016 examiner and an elevated surface contour on the left ear, noted on the April 2016 report as a "slight bump" on the left earlobe. 

Regarding the Veteran's statement to the April 2016 examiner that his scars drain pus every day and scab every 3 months, the Board notes that the Veteran had never previously made such an assertion, and such symptomatology has never been observed on examination. 

The Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994).

While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony).

While the lack of any medical support for the assertions of scabbing and draining of pus is not itself determinative-the Veteran is competent to describe such symptoms-the Board finds the Veteran's descriptions not just to be unsupported clinically, but to be in direct conflict with the medical evidence, which has described healed scars. His assertions, in particular the frequency of draining pus, conflict not only with the findings in April 2016, but with the findings in October 2013 that the disability was limited to scars on the earlobes with no systemic manifestations, that there were no benign or malignant neoplasm or metastases, and that there had been no episodes in the past 12 months of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. They also conflict with the December 2014 description of well healed scars. 

Also significant is the fact that the Veteran has submitted photographs taken on his phone of the scars, which were interpreted by the April 2016 examiner as showing swelling and redness. However, even these pictures taken by the Veteran do not show scabs or pus. The Veteran clearly has the ability to document such episodes if and when they occur, and the Board may reasonably interpret the lack of evidence of such symptomatology in the photos submitted by the Veteran as weighing against the veracity of his assertions. As the Board has found the assertion of daily draining of pus and frequent scabbing to be lacking in credibility, the Board relies on the clinical examination findings as representative of his level of disability. As these findings demonstrate only one characteristic of disfigurement, the requisite criteria for a higher rating under Diagnostic Code 7800 are not met and are not more nearly approximated than those for the rating of 10 percent. See 38 C.F.R. § 4.7.

The Board has considered the applicability of other diagnostic codes. However, none are appropriate. Diagnostic Code 7801 applies to scars not of the head, face, or neck. Diagnostic Code 7802 applies to large nonlinear scars. The Veteran's scars on his face and do not approach the size contemplated for even the minimum rating under Diagnostic Code 7802. 

Diagnostic Code 7804 applies to painful scars. Diagnostic Code 7805 applies to scars that cause limitation of function. The findings in December 2014 are against such symptomatology. Accordingly, no other diagnostic codes are appropriate.

Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

The Veteran does not contend that his sebaceous cysts have rendered him unemployable and the evidence does not otherwise demonstrate that his sebaceous cysts have resulted in unable to secure or follow a substantially gainful occupation. Therefore, the Board finds that the rating issue on appeal does not encompass a claim for a total disability rating based on individual unemployability due to service connected disabilities (TDIU) in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating).

In sum, the Board finds that the service-connected disability has been manifested by not more than 1 characteristic of disfigurement during the period on appeal. As such, the Board concludes that a disability rating in excess of 10 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Compensation under 38 U.S.C.S. § 1151

The Veteran is seeking compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection. This claim was subject to a final decision in August 2005 which denied the claim. In December 2015, the Board determined that new and material evidence had been received sufficient to reopen the claim and remand it for additional development. The Board now addresses the merits of the claim. 

When a claimant incurs additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a). 

To be awarded compensation under section 1151, a claimant must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. 

To determine whether additional disability exists, the claimant's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the claimant's condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b).

Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). 

The proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). 

Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2).

Historically, in October 2001, the Veteran was evaluated following an injury to his right arm. Upon examination, a thrombosis of the subclavian vein was assessed, believed due to thoracic outlet syndrome, and a right subclavian stent was inserted. The Veteran was treated with anticoagulation medication and was found to be free of further clots. The Veteran was discharged on November 4, 2001. He was advised to undergo resection of the right first rib to prevent further occurrences or complications (VBMS record 01/21/2002). 

The Board observes that thoracic outlet syndrome is the compression of nerves, arteries, or veins in the passageway from the lower neck to the armpit. See https://www.ninds.nih.gov/Disorders/All-Disorders/Thoracic-Outlet-Syndrome-Information-Page. Rib resection is intended to relieve this compression. 

A private physician, D. Bingham, MD, wrote a letter to the VA Medical Center dated December 10, 2001. He stated "I'm sure that the vascular surgeons at the VA are capable of doing this surgery, although I don't think they do very much of it. If it's my first rib [resection], I would go to the person that does the most cases in that area and deals with this problem all the time, and that is through our office." He concluded "I think you should strongly consider having [the Veteran] have his surgery done through me."

On January 15, 2002, the Veteran signed a VA Consent For Surgery, Administration of Anesthetics, and/or Diagnostic/Therapeutic Procedures. This applied to a resection of the right first rib to be conducted at a VA facility. In signing, he affirmed that the procedure had been explained in terms understandable to him, including 1) the nature and extent of the procedure to be performed and risks involved including those which, even though unlikely to occur, involve serious consequences; 2) alternative procedures and methods of treatment; 3) the dangers and probable consequences of such alternatives (including no procedures or treatment); 4) the expected outcomes of the procedure upon his health; 5) that he had asked all of the questions he thought were important in deciding whether or not to undergo treatment or diagnosis, and that those questions had been answered to his satisfaction; 6) that he understand that no assurance could be given that the procedure would be successful and no guarantee or warranty of success or cure had been given to him; 7) that he consented to the administration of sedation/anesthesia; 8) that he authorized and requested his physician and his/her associates, assistants, and appropriate hospital personnel to perform such additional procedures that in their judgment are necessary to carry out the treatment; 9) that he understand that he have the right to refuse any medical and surgical procedures and treatment; 10) that he consented to the admittance of observers; 11) that he requested the disposal by authorities of any tissues or parts that it may be necessary to remove; 12) that he authorized proper personnel to take photographs and motion pictures; and that he certified that he had read and fully understood the above consent and all blanks were filled in or crossed out before he signed, and freely give his consent to the above listed procedure (VBMS record 10/31/2013). 

The Veteran signed a similar release on January 17, 2002, the day of the procedure, as did the surgeon and a witness. This release included the description of the procedure as "cut out the right first rib and cut muscles attached to it" (VBMS record 10/31/2013). 

On January 17, 2002, the Veteran underwent a surgical resection of his right first rib with excision of scalenus anterior and medius on the right side. The operative note states that "The procedure was explained to the patient," and "informed consent obtained." It also states that "the scalenus medius muscle was identified and divided sharply near its attachment to the first rib using sharp dissection. Care was taken to insure that we pinched the proposed cutting of muscle prior to make sure that the long thoracic nerve or thoracodorsal nerve was not inside it" (VBMS record 10/31/2013). 

The Veteran was discharged from the hospital on January 21, 2002. On February 6, 2002, the Veteran complained that he could not lift his right arm above shoulder level. Examination of the extremities showed that there was winging of the right scapula and weakness of the right arm on abduction above 45 degrees. The physician indicated that the Veteran had low thoracic nerve palsy (VBMS record 01/21/2004). 

In March 2002, a vascular clinic note indicated that the Veteran apparently suffered a long thoracic nerve injury postoperatively. A March 2002 physical therapy note indicated that the Veteran showed increased atrophy of the right pectoralis and upper trapezium muscles, and he continued to have winging of the scapula with any active range of motion over his head. The Veteran was discharged from physical therapy in June 2002 because he had achieved most physical therapy goals, and his progress had plateaued over the previous several months (VBMS record 01/21/2004). 

As part of a Federal Tort Claims Act lawsuit, several depositions were taken to be used as expert witness testimony. A March 2004 deposition of Dr. Scheer discusses primarily whether the damage was likely permanent and recommended treatment modalities (VBMS record 01/31/2013). A March 23, 2004, deposition of Dr. Sanders (vascular surgeon) reports that the standard of care in 2002 required that the surgeon be aware that the long thoracic nerve will be somewhere in the middle of the middle scalene muscle, or on the inside of it; that the surgeon would make an attempt to see that nerve; and, that not seeing the nerve, the muscle could be pinched to see if the shoulder jumps, in order to ascertain whether or not that nerve may be lying in the muscle that the surgeon is about to cut. Dr. Sanders testified that a long thoracic nerve injury is definitely a risk of scalenectomy operations. Because the long thoracic nerve lies so encased and entwined in the middle scalene muscle, and close to the first rib, it is always at risk of being injured when the first rib is removed or the middle scalene muscle is removed. Injury to the long thoracic nerve is not of itself a deviation from the standard of care because the nerve can be injured in spite of following all accepted standards of care to identify and protect it. He testified that there are many variations in style of operative reports, and that some styles are more detailed than others. Operative reports are typically dictated after the surgery is complete and rely on the surgeon's memory of the procedure. He testified that, where a surgeon has dictated and prepared an operation report and has not specifically stated that an attempt was made to visually locate the long thoracic nerve, that does not necessarily mean that the surgeon did not attempt to look for the long thoracic nerve, and that this would not be evidence of malpractice (VBMS record 05/20/2005). 

A deposition was also taken from Dr. Pasch, a vascular surgeon, in January 2005. He stated that he believes the nerve was injured during the surgical procedure and that the nerve was probably cut. He stated that the standard of care was not met because the report does not state that the surgeon attempted to identify the long thoracic nerve. He also stated that he would not rely on pinching the muscle as the sole mechanism to avoid injuring the nerve, but it certainly is an acceptable way to proceed if you have attempted to identify the nerve and have been unsuccessful (VBMS record 05/20/2005). 

Earlier depositions of Drs. Sanders and Pasch (dated November 2003 and November and December 2003) were submitted subsequent to the initial denial of the claim. These contained similar statements to those recorded in March 2004 and January 2005. Dr. Pasch opined that the surgeon only pinched the middle scalene muscle to check for shoulder twitch, and thus the presence of long thoracic nerve, but he did not look for it, and this represents a breach in standard of care. This is based on the absence of notation that the surgeon looked for the nerve (VBMS record 07/24/2013). 

Documents submitted by the Veteran include a medical opinion which does not contain a date or identification of the provider. It is possibly from Dr. Pasch, but this cannot be determined. The opinion states in pertinent part, regardless of the exact mechanism of injury, visual identification of the nerve would have prevented injury to it (VBMS record 05/20/2005). 

The report of a VA examination dated June 2005 reveals a detailed review of the clinical history. The examiner noted that the surgical report stated that there was extremely hypertrophic muscle, and deliberate care was taken to minimize injury to the posterior brachial plexus structures and to the phrenic nerve. The narrative further stated that care was taken to ensure that the surgical team pinched the proposed muscle prior to cutting to make sure that the long thoracic nerve or thoracodorsal nerve was not incited, and after this, the vertebral costal junction was identified posteriorly. The examiner found that this notation indicated that more than adequate and deliberate efforts had been deployed to prevent injury to the long thoracic and thoracodorsal nerves. The nurse's intraoperative report documented that a grounding pad was properly placed on the left lateral thigh, safety straps, pillow head rest, arm tucked right, arm tucked left, foam pad on the elbows, gel pad, and a roll sheet were all provided. Nursing care comments included "outcome: free from musculoskeletal nerve impairment."

The examiner opined that due care was executed during the surgical procedure and was well documented in the evidence of record. The medical examiner opined that the Veteran's winged scapula was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care in connection with the rib removal. The examiner noted that the highest level of professional orthopedic and thoracic consultation had been deployed. The examiner noted that the Veteran's condition would be permanent, and there would be little improvement. The examiner noted that undesirable outcomes from surgical procedures could not be predicted. The examiner indicated that it did not appear that specific accident or injury had occurred during the surgical procedure. 

Dr. Bingham wrote a letter in July 2014 which noted that he had written a prior letter (see discussion of December 10, 2001, letter at page 12 above) saying that somebody with experience needs to do this operation. He stated: "Unfortunately, the VA ignored me and they ignored him at that time. I think he probably had less than a good operation and complications related to it" (VBMS record 07/24/2014). 

In response to the Board's December 2015 remand, a medical opinion was obtained in November 2016. The VA specialist undertook an extensive review of the Veteran's medical history and medical literature, and research studies addressing complications from rib resection surgery. The specialist offered an opinion regarding the incurrence of additional disability as a result of the January 2002 rib resection surgery, finding that, although the exact nature of the injury (resection, crush injury, stretch injury, etc.) cannot be determined with precise certainty, an injury of some sort occurring at surgery appears clear. He noted that the timing of the condition arising with surgery (and the fact that this is a known potential complication of surgery) support the conclusion that this disability was a complication of the January 2002 procedure. The specialist continued:

It appears less likely than not that this injury was caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in providing the January 2002 surgery. Also, it appears less likely than not that this additional disability was unforeseeable but rather would have been one a reasonable health care provider would have considered to be an ordinary risk of the rib resection surgery. 

The VA specialist (November 2016 opinion) noted that a medical record review reveals that the Veteran was carefully evaluated prior to his surgery in 2002 (both at the private hospital in Lincoln and the Omaha VA) to determine that this surgery was indeed indicated. The specialist referenced a finding of "very tight stenosis" as implying that the Veteran was at significant increased risk for recurrence of thrombosis and this supports the decision to proceed with surgery. The specialist explained that, whenever a decision is made to proceed with surgery in a case such as this, the risks of surgery (including nerve damage which is recognized as an "ordinary risk" with such procedures) must be weighed against the potential benefits (reduced risk of recurrent thrombosis for example). He concluded that: 

in this case, the record reflects a careful review of potential risks and benefits, and the decision to proceed with surgery appears reasonable even in retrospect (and no evidence of poor judgment was found). The risk of recurrence appeared significant in this case and included a small risk of death due to thrombosis complications. 

The VA specialist (November 2016 opinion) also found that appropriate precautions were taken during surgery to try to avoid damage to the long thoracic nerve. The operative note states "Care was taken to insure that we pinched the proposed cutting of muscle prior to make sure that the long thoracic nerve or thoracodorsal nerve was not inside it." According to the specialist, this note clearly supports the conclusion that there was no negligence or carelessness or similar instance of fault during surgery. The specialist reiterated that this injury is a well-known potential complication of this procedure even when proper precautions are taken and the procedure is performed expertly. 

The VA specialist (November 2016 opinion) conducted a review of medical literature, finding that the literature indicates that this complication is well recognized and understood and can be anticipated to occur as a complication in a small number of cases even when good judgment and expert technique/care are used. In addition, the medical literature demonstrates that complications due to thoracic outlet surgery are less likely to occur when the operation is performed at a teaching hospital with residents involved such as at the Omaha VA. No evidence was found to indicate a lack of planning or care for the reasonably foreseeable possible risk of long thoracic nerve injury. As noted above, appropriate precautions were taken in surgery to avoid this complication, and once it occurred it was promptly diagnosed and addressed. The specialist concluded that, unfortunately, such outcomes will arise in a small percentage of cases despite appropriate care. 

The VA specialist cited to Thoracic Outlet Syndrome Treatment and Management:http://emedicine.medscape.com/article/96412-treatment#d10 for its statement that potential complications from rib resection surgery can include pneumothorax, injury to the subclavian artery or vein, injury to the brachial plexus and long thoracic nerve, apical hematoma, intercostobrachial nerve injury, and injury to the thoracic duct.

The VA specialist cited to Neurogenic thoracic outlet syndrome: A case report and review of the literature: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2966747 for its statement that 1 percent of patients have a long thoracic nerve injury resulting from transection of a branch of the nerve during dissection of the middle scalene muscle.

The VA specialist cited to Reported in-hospital complications following rib resections for neurogenic thoracic outlet syndrome: http://www.sciencedirect.com/science/article/pii/S0890509607001793 for its statement that the low complication rates suggest that the operation can be performed safely in all patients, especially at teaching hospitals, which had significantly lower rates of vascular injuries, shorter hospital lengths of stay, and lower hospital charges.

The VA specialist (November 2016 opinion) cited to severe injuries resulting from operations for thoracic outlet syndrome can they be avoided?: https://www.ncbi.nlm.nih.gov/pubmed/1939323 for its statement that the results of the present study, as well as rare reports in the literature, demonstrate that these complications may occur even with experienced surgeons using either the supraclavicular or transaxillary approaches.

After a review of all of the evidence, the Board finds that the January 2002 procedure resulted in additional disability as the long thoracic nerve was injured resulting in loss of muscle function, atrophy, loss range of motion of the shoulder, and scapular winging. However, the proximate cause of the additional disability was not negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, and that the additional disability arising from the surgery was reasonably foreseeable. 

There appears to be no dispute as to the actual incurrence of additional disability as a result of the surgery. There also appears to be no dispute that injury to the long thoracic nerve is a risk factor for rib resections, and thus a reasonably foreseeable event. While there have been comments in the record questioning whether informed consent was provided, and the Veteran has specifically asserted that he did not provide informed consent, signed informed consent is clearly documented in the record. Therefore, to the extent of any uncertainty on this point, the Board finds that adequate written informed consent was obtained in compliance with 38 C.F.R. §§ 3.361(d)(1)(ii), 17.32. 

The only other dispute in the medical evidence centers on whether there was negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the surgeon. Dr. Pasch opined that the standard of care was not met in this case, and he based this conclusion on the absence of notation in the operative record that the surgeon attempted to visually identify the long thoracic nerve prior to cutting into the scalenus medius muscle. 

Dr. Bingham's July 2014 letter is also critical, but falls short of finding negligence. The statement "I think he probably had less than a good operation and complications related to it" is imprecise and does not approximate a finding of negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA. 

The Board finds the detailed discussion of the November 2016 VA specialist to be highly persuasive as to each point necessary for resolution of this appeal. It is clear from his discussion and from the clinical research cited that long thoracic nerve injury is a recognized complication, albeit in a small percentage of cases, to the type of surgery (rib resection) performed in this case, and that the incurrence of such complication does not demonstrate or imply negligence, lack of proper skill, error in judgement or other instance of fault on the part of the medical professionals involved. 

In comparison, the opinion of Dr. Pasch is based largely on an inference made from the lack of specific evidence on one point. Because the surgeon did not specifically state in the operative report that he attempted to visually locate the long thoracic nerve prior to cutting the scalenus medius muscle, Dr. Pasch has inferred that no such attempt was made. However, the testimony of Dr. Sanders reasonably accounts for the lack of explicit recording of an attempt to visually locate the nerve as consistent with the wide variety of acceptable formats for operative reports, the variations in detail routinely employed by surgeons, and the problems inherent in recording the details of a complex operation post-operatively, by memory alone. 

While there is no question that Dr. Pasch is competent to state his opinion, and that the Board is not competent to opine on the medical question at issue here, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). 

In this case, the Board finds that the essential concern underlying Dr. Pasch's opinion is reasonably addressed and explained by Dr. Sander's opinion. Dr. Pasch has not explained why the lack of specific notation of an event (absent evidence), in the context of a report that is subject to a wide variety of formats and levels of detail, and which relies on human memory, recalled possibly hours after a complex procedure, should lead to the inference that the event did not occur, when that event is considered to be part of generally accepted medical practice. As they are better explained and consistent with one another, the Board places greater probative weight on the opinions of Dr. Sanders, and the VA examiners, as stated in the June 2005 and November 2016 reports. 

In sum, the Board finds that the January 2002 rib resection resulted in additional disability in the form of injury to the long thoracic nerve. However, the proximate cause of the additional disability incurred during the January 2002, rib resection was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment. The proximate cause of the disability was reasonably foreseeable. Therefore, the Board concludes that compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

CUE Claim

The Veteran is seeking revision of a final August 2005 rating decision, which denied compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection. The basis for the claim is an allegation of CUE in the August 2005 decision. 

The Board notes that the finality of the August 2005 decision is not in question, and a collateral attack on the decision would be fundamentally inconsistent with a non-final decision.

VA law provides that RO decisions that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE in a prior final decision, such decision will be reversed or amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a).

In determining whether a prior determination involves CUE, the Veterans Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time of the decision, 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). 

CUE is a very specific and rare kind of error. 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.

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). 

To the extent the Veteran wishes to revisit the August 2005 decision on any basis other than CUE, such a claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).

As noted above, this claim was denied previously by the Board, and that decision was vacated and remanded by the Veterans Court. In this decision, the Board will focus on the specific deficiencies found by the Veterans Court and will not restate findings and conclusions from the December 2015 Board decision, which were not found to be deficient by the Veterans Court. 

The October 2016 Joint Motion states that the Board failed to provide adequate reasons and bases with regard to two private medical opinions. The parties stated that, in its December 2015 decision, the Board noted that a prior October 2012 Veterans Court decision appeared to suggest that the RO's failure in August 2005 to discuss statements by various doctors, including Dr. Sanders, Dr. Pasch and Dr. Scheer could be consistent with a finding of CUE. The Board determined that the RO explicitly indicated that legal documents from Javernick and Stenstrom, LLC were considered during the August 2005 adjudication and the RO's failure to list the statements from the physicians in the August 2005 rating decision could not constitute CUE. However, a review of the records from Javernick and Stenstrom, LLC, undertaken by the parties showed that they only contained records from Dr. Sanders. Depositions from Dr. Sanders in November 2003, Dr. Pasch, and Dr. Scheer, were from another law firm, not Javernick and Stenstrom. Therefore, parties agreed that the BVA provided inadequate reasons or bases with regard to these records.

The Board first must determine whether the reference to October 2012 Veterans Court decision implies that there may be a specific holding that limits the Board's determination of CUE in this case. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). 

A review of the October 2012 decision reveals that the Veterans Court held that (1) the RO did not consider statements by Dr. Burkman, Dr. Pasch, Dr. Scheer, Dr. Frazen, and Dr. Sanders in its August 2005 decision; and (2) that the Board did not discuss whether the physicians' statements constitute new and material evidence. However, the Veterans Court held that this error was harmless and not prejudicial.

The Veterans Court observed that, in the above arguments, the Veteran was perhaps raising a CUE claim, and directed the Veteran to first raise such a claim with the RO. The Board finds that the discussion of CUE was purely advisory to the Veteran and involved no instruction to the Board and no specific holding as to what constitutes CUE in this case. 

The Veterans Court noted that the RO's August 2005 decision indicates that the RO considered medical documents from the Lincoln VA medical facility, but does not mention documents from the Omaha facility. The Veterans Court found that there is no indication in the RO's decision, therefore, that the Omaha documents were part of the record at the time it reached its decision, and there has been no subsequent finding by either the RO or the Board addressing when these documents were received by VA. The basis of the Veterans Court's decision to vacate the Board's December 2015 decision related solely to the lack of discussion of outstanding evidence that may be new and material to the issue of compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection. The Board has since granted reopening of that claim, thus granting the specific benefit at issue before the Veterans Court in October 2012. Therefore, the Board finds that there is no law of the case arising from the October 2012 decision that would impact the Board's determination of whether there was CUE in the August 2005 RO rating decision. 

Moreover, the Board finds that the October 2016 Joint Motion contains no stipulation of the parties as to what constitutes CUE in this case, but relates to an error in the Board's identification of the source of specific records (depositions of Dr. Sanders (November 2003), Dr. Pasch, and Dr. Scheer) as being from Javernick and Stenstrom, LLC. The parties agreed that these records were from another (unstated) law firm, and that this error in identification of the source of the documents constitutes inadequate reasons and bases. The parties do not specifically stipulate that the records discussed were not before the RO in August 2005 or that they were not submitted to the RO by the Veteran or his representative. They stipulate only that the Board misidentified the law firm they are "from." 

The August 2005 rating decision includes a summary list of evidence including records from the Lincoln VA Medical Center, an opinion from the Omaha VA Medical Center, and "Legal documents submitted by you from Javernick and Stenstrom, LLC." 

The claims file reveals that, in addition to VA records, the documents marked as received prior to the August 2005 decision include a March 2004 deposition of Dr. Sanders, marked as taken at the Bruckner/Fowles Law Firm, and marked at the bottom of each page with "Javernick & Stenstrom, LLC." Also of record was a November 2003 deposition of Dr. Sanders and a January 2005 deposition of Dr. Pasch, neither of which is marked with "Javernick & Stenstrom, LLC." In addition, the record contained a June 2003 medical report from Dr. Pasch, several medical reports from Dr. Scheer dated in July 2003, a March 2004 report from Dr. Burkman, and a July 2003 cervical MRI report from Dr. Franz. There is also an unsigned, undated report which may simply have been scanned out of order with the rest of the pages. These documents are not marked with "Javernick & Stenstrom, LLC."

Records received from the Veteran subsequent to the August 2005 rating decision include a March 2004 deposition of Dr. Scheer and depositions of Dr. Pasch taken in November 2003 and December 2003. 

The Board can discern 2 cognizable arguments or assertions of CUE with respect to the records identified by the parties. First, that some of the records were submitted after the August 2005 decision and thus were clearly not of record at the time of that decision. Therefore, the record was not complete in August 2005. The second argument is that the RO's lack of discussion of favorable evidence reasonably implies that the RO did not adequately consider some or all of the records the Veteran submitted, or discounted them, or ignored them. 

With respect to the later-received records, i.e., records that were in existence but were not before the adjudicator, the Board notes that there is a fundamental difference between an incomplete record and an incorrect factual basis. The absence of pertinent records is not CUE and is not the equivalent of "the correct facts, as they were known at the time of the decision, were not before the adjudicator." It can be argued that no evidentiary record is ever complete. There is always relevant or pertinent evidence that is not before the adjudicator. An incomplete record, factually correct in all other respects, is not CUE. Cook, 318 F.3d at 1346.

Here, there is no indication that the Veteran requested assistance in obtaining additional records. However, even to the extent the duty to assist had been triggered, a purported failure in the duty to assist cannot give rise to CUE because such an allegation is essentially based upon evidence that was not of record at the time of the earlier rating decision. See Cook, 318 F.3d 1334 (Fed. Cir. 2002); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Elkins v. Brown, 8 Vet. App. 391, 396 (1995). In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to clear and unmistakable error, nor does it result in grave procedural error so as to vitiate the finality of a prior, final decision. See also Crippen v. Brown, 9 Vet. App. 412 (1996). 

Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Moreover, the mere misinterpretation of facts by the RO does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).

Regarding the argument that the RO did not give adequate consideration to, discounted, or ignored, favorable evidence, this is a dispute as to how the evidence was weighed and is not CUE. Based on the date of receipt, the RO clearly had evidence available to it that was supportive of entitlement under 38 U.S.C.S. § 1151 at the time of the August 2005 decision. The January 2005 deposition of Dr. Pasch is favorable to the claim and is marked as received at the RO on May 20, 2005. Indeed, it is still the primary opinion in favor of 38 U.S.C.S. § 1151 entitlement.

The allegation is that the RO did not discuss this evidence. However, while the RO must include a statement of the reasons for the decision, and a summary of the evidence considered (see 38 U.S.C.S. § 5104 (West 2014), the RO is not required to specifically discuss the evidence they have considered. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination must be presumed to have been reviewed by VA, and no further proof of such review is needed). The mere absence of discussion of the evidence by the RO is not CUE. 

The RO certainly did not deny the existence of the cited evidence. Bouton v. Peake, 23 Vet. App. 70 (2008) (RO denial of the existence of evidence in the claims file that did indeed exist meets the first prong of the test for CUE). The stated basis for the denial is that "the evidence and medical opinion do not support a grant of compensation under this regulation and because the evidence fails to establish that the VA medical services were the proximate cause of additional disability." This is clearly phrased in terms of weighing of the evidence regardless of whether the favorable evidence is explicitly mentioned. 

A dispute with how the evidence was weighed is not a valid basis for an allegation of CUE. Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. "Broad-brush" allegations of "failure to follow the regulations" or "failure to give due process" are also insufficient. Fugo, 6 Vet. App. at 44.

Finally, as there was evidence supportive of entitlement to compensation under 38 U.S.C.S. § 1151 at the time of the denial, it cannot be said that obtaining additional evidence or an explicit discussion of the favorable evidence would have manifestly changed the outcome at the time it was made. There was also significant evidence against the claim. While a change in the outcome is certainly arguable or debatable, an arguable or debatable proposition is never a valid basis for a finding of CUE. 

As the parties have identified no other errors in the Board's discussion in December 2015, the Board incorporates by reference the reasons and bases discussion of the December 2015 decision with respect to the specific allegations of CUE not addressed in the Joint Motion. 

In sum, the Board finds that, to the extent of any errors in the August 2005 rating decision, the record does not demonstrate that the outcome of the claim would have been manifestly different but for any such error. As such, the Board concludes that revision of the August 2005 decision on the basis of CUE is not warranted. 

Duties to Notify and Assist

VA's duty to notify was satisfied by letters in March 2009, April 2009, May 2005, and by the proposed rating in June 2015. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. 

The RO has also obtained a thorough medical examination regarding the rating claim, as well as medical opinions addressing the rating issue and 38 U.S.C.S. § 1151 issue. The Veteran has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). 

As the CUE determination is made based on the evidence of record in August 2005, the Board finds that no additional evidence or opinion is necessary. 

As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

In this case, the RO substantially complied with the Board's remand instructions by obtaining a medical opinion regarding the existence of additional disability resulting from the January 2002 rib resection surgery and if so, whether such additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the January 2002 surgery. 

Although the Board requested an opinion from a thoracic surgeon, the RO determined that no thoracic surgeon was available at the Lincoln RO or in a different RO. Accordingly, the RO requested an opinion from a board-certified specialist in internal medicine. The Board finds that the opinion is adequate and the physician's knowledge of the subject area and experience in the procedure being addressed are evident from his discussion. Therefore, there is no prejudice with respect to the RO's inability to obtain the specific specialist requested, and the Board finds that there has been substantial compliance with its instructions.


ORDER

A disability rating in excess of 10 percent for sebaceous cysts of the bilateral earlobes is denied. 

Compensation under 38 U.S.C.S. § 1151 for residuals of a rib resection is denied. 

Revision of the August 2005 rating decision on the basis of CUE is denied. 



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs