Citation Nr: 1800948	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  12-05 074A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether the March 1973 and October 2005 rating decisions that assigned a compensable rating for a bilateral eye disorder, characterized as corneal scars with retained foreign bodies was clearly and unmistakably erroneous.  

2.  Whether the March 1973 rating decision that denied a compensable rating for residuals of a shell fragment wound to the right bicep and left buttock was clearly and unmistakably erroneous.

3.  Entitlement to a compensable rating for a bilateral eye disorder, characterized as corneal scars with retained foreign bodies.

4.  Entitlement to a compensable rating for residuals of a shell fragment wounds to the right bicep and left buttock.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. Meyer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1969 to September 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In June 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record.   

The issues of entitlement to increased ratings for a bilateral eye disorder, and residuals of a shell fragment wound are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The March 1973 and October 2005 rating decisions which assigned a noncompensable rating for the Veteran's bilateral eye disorder was supported by the evidence then of record and was not undebatably erroneous.  The record does not show that the correct facts, as they were known in March 1973 and October 2005, respectively, were not before the RO at that time, or that incorrect laws or regulations were applied.

2.  The March 1973 rating decision which assigned a noncompensable rating for residuals of shell fragment wounds to the right bicep and left buttock was supported by the evidence then of record and was not undebatably erroneous.  The record does not show that the correct facts, as they were known in March 1973 were not before the RO at that time, or that incorrect laws or regulations were applied.


CONCLUSIONS OF LAW

1.  The March 1973 and October 2005 rating decisions assigning a noncompensable rating for a bilateral eye disorder, characterized as corneal scars with retained foreign bodies was not clear and mistakable error.  38 U.S.C. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105(a), 3.344, 3.500(1)(b) (2017).

2.  The March 1973 rating decision assigning a noncompensable rating for residuals of shell fragment wounds to the right bicep and left buttock was not clear and mistakable error.  38 U.S.C. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105(a), 3.344, 3.500(1)(b) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Clear and Unmistakable Error

The Veteran asserts that the March 1973 and October 2005 rating decisions assigning a noncompensable rating for a bilateral eye disability, as well as the assignment of a noncompensable rating for residuals of a shell fragment wounds in the March 1973 rating decision were the result of a clear and unmistakable error (CUE).

Under VA regulations, a RO decision that has become final generally may not be reversed or amended in the absence of CUE.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a); 38 U.S.C. §§ 5108, 7105(c).  There is a three-prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 40 (1993). 

Further, CUE is 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.  Fugo v. Brown, 6 Vet. App. 40 (1993).

Bilateral Eye Disorder

The Veteran asserts that in assigning the appropriate rating, the March 1973 and October 2005 adjudicators committed CUE by failing to consider his corneal scarring and the retention of shell fragments in his eyes.  Based on the available evidence, the Board concludes that there was no CUE in the RO's March 1973 and October 2005 rating decisions which denied the Veteran's claims related to his bilateral eye disorder.

In March 1973, the RO granted service connection for a bilateral eye disorder, characterized as corneal scars, both eyes with retained foreign bodies, and assigned a noncompensable rating under DC 6099 (1972) (which was later changed to DC 6099-6079 - rating by analogy to impairment of central visual acuity).  In that decision, the adjudicator relied on the service treatment records and the findings of a January 1973 VA examiner, which indicates that while the Veteran had bilateral corneal scarring with retained "foreign bodies," his uncorrected visual acuity was nevertheless 20/20 without any additional symptomology.   

Similarly, in October 2005, the adjudicator continued the noncompensable rating based upon the fact that the August 2005 VA examiner determined that the Veteran's corrected visual acuity in his right eye was 20/20 and 20/15 in his left eye.  Moreover, there was no evidence of any other eye symptomology that would warrant a compensable rating. 

It is the Veteran's primary assertion that the March 1973 and October 2005 adjudicators did not properly weigh the facts is insufficient for a CUE claim.  The law provides that a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE.  See 38 C.F.R. § 20.1403(d).  The Board understands his argument that his bilateral corneal scarring with foreign bodies should warrant a compensable rating.  However, if he disagreed with the adjudication of his claim in March 1973 and October 2005, respectively, he could have submitted a Notice of Disagreement within one year of the rating decisions.  Therefore, the Board will not second-guess the adjudicator's evaluation of the evidence after the rating decision becomes final. 

Next, the Board notes that under the rating criteria in effect in March 1973, the adjudicator rated the Veteran's bilateral eye disability as analogous to impairment of the central visual acuity.  38 C.F.R. § 4.48a, DC 6079.  To obtain a compensable percent rating for impairment of central visual acuity, the Veteran's corrected vision must be 20/40 in one eye and 20/50, 20/70, or 20/100 in the other eye.  38 C.F.R. § 4.84a, Dc 6079.  Thus, the fact that the Veteran only has corneal scarring with foreign bodies has no impact on his rating.  As a result, to the extent there was an error in considering it, the error would not have changed the outcome at the time of the March 1973 adjudication.

Additionally, the Board notes that even if VA had considered other potentially relevant diagnostic coders, to include 6009 (unhealed eye injury), the Veteran's rating would remain unchanged.  Specifically, the Veteran's eye injury was not deemed to be "unhealed," and the presence of corneal scarring with foreign bodies without any other symptomatology is not enough to warrant a higher rating under another potentially relevant diagnostic code.  

For the reasons set forth above, the Board finds that the March 1973 and October 2005 decisions were not undebatably erroneous.  The record does not demonstrate that the correct facts, as they were known in March 1973 and October 2005, respectively, were not before the RO, or that the RO incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error.  

Residuals of Shell Fragment Wounds

Based on the available evidence, the Board concludes that there was no CUE in the RO's March 1973 rating decision.

The Veteran asserts that the RO committed CUE in its March 1973 decision by not assigning a compensable rating due to the presence of shell fragments in his bicep and buttock.  Further, the Veteran claims that the residuals of the shell fragment wound should have been rated as a compensable muscle injury under 38 C.F.R. § 4.73, DC 5305 and 5313 (1972) (addressing injuries to the bicep and buttock muscles).  

In March 1973, the RO granted service connection for residuals of a shell fragment wound to the Veteran's right bicep and left buttock and assigned a noncompensable rating under 38 C.F.R. § 4.118, DC 7805 (which rates the scars under DCs 7800-7804 and its disabling effects under the relevant diagnostic code) (1972).  In that decision, the adjudicator relied on the service treatment records and the findings of the January 1973 VA examiner, which indicate that the Veteran's bicep and left buttock scars measured 3mm X 4.1mm and .25 mm, respectively, were not disfiguring, and did not cause any disabling effects.

Here, as previously discussed, the Veteran's assertion that the March 1973 adjudicator did not properly weigh the facts is insufficient for a CUE claim.  The law provides that a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE.  See 38 C.F.R. § 20.1403(d).  The Board understands his argument that his shell fragment residuals should warrant a compensable rating.  However, if he disagreed with the adjudication of his claim in March 1973, he could have submitted a Notice of Disagreement within one year of the rating decision.  Thus, the Board will not second-guess the adjudicator's evaluation of the evidence after the rating decision becomes final. 

The Board also notes that, under the rating criteria in effect in March 1973, the adjudicator rated the Veteran's residual shell fragment wounds under 38 C.F.R. § 4.118, DC 7805.  To obtain a 10 percent rating for scars, the evidence must show a scar that is one foot (DC 7801), poorly nourished with ulceration (DC 7803), painful or tender (DC 7804), or otherwise disabling (DC 7805).  In this case, despite the fact that the Veteran still has shell fragments inside his wounds, this is of no impact to his rating given that he does not meet the requirements for a compensable rating based upon size or symptomatology (such as pain or other disabling effects).  As a result, to the extent there was an error in considering the residual shell fragments, this error would not have changed the outcome at the time of the March 1973 adjudication.

Further, the Board notes that even if VA had considered other potentially relevant diagnostic coders, to include DCs 5305 and 5313 (addressing muscle injuries of the bicep and buttock), the Veteran's rating would remain unchanged.  38 C.F.R. § 4.73.  Specifically, a 10 percent rating is assigned for "moderate" injuries to the bicep and buttock.  38 C.F.R. § 4.73, DCs 5305 and 5313.  Nevertheless, the January 1973 VA examiner indicated that the Veteran's scars/residuals did not cause any muscle dysfunction, tenderness, or gross abnormality.  As such a higher rating is not for application based upon the evidence at the time of the March 1973 decision.  Moreover, the RO's characterization of the Veteran's shell fragment wound as a scar rather than a muscle injury was not CUE.  

For the reasons set forth above, the Board finds that the March 1973 rating decision was not undebatably erroneous.  The record does not demonstrate that the correct facts, as they were known in March 1973, were not before the RO, or that the RO incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error.  

Therefore, the Board concludes that there was no CUE in any of the aforementioned rating decisions.  


ORDER

The motion to revise or reverse March 22, 1973 and October 27, 2005 rating decisions assigning a noncompensable rating for a bilateral eye disorder, characterized as corneal scars with retained foreign bodies on the basis of CUE is denied. 

The motion to revise or reverse a March 22, 1973 rating decision assigning a noncompensable rating for residuals of shell fragment wounds to the right bicep and left buttock on the basis of CUE is denied.


REMAND

In a June 2017 hearing, the Board determined that the Veteran's claims on appeal also encompassed entitlement to increased ratings for his bilateral eye disability and residuals of shell fragment wounds to his right bicep and left buttock.  Therefore, a remand is required for further adjudication of these issues and the issuance of a statement of the case (SOC).  Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996).


Accordingly, the case is REMANDED for the following action:

After conducting any additional development deemed necessary, issue a statement of the case on the issues of entitlement to an increased rating for a bilateral eye disorder, characterized as corneal scars with retained foreign bodies, and an increased rating for residuals of shell fragment wounds to the right bicep and left buttock.  The Veteran must be informed of his appeal rights and that he must file a timely substantive appeal to perfect an appeal on that issue.  If an appeal is perfected, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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. §§ 5109B, 7112 (2012).




______________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs