Citation Nr: 1804149 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 08-20 804 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether there was clear and unmistakable error (CUE) in a September 1986 rating decision that failed to award a separate compensable rating for scars as a residual of a laparotomy. (The issue of entitlement to an effective date earlier than May 23, 2006, for the award of a separate compensable rating for residual scars of the service-connected residuals of laparotomy, is addressed in a separate decision). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bates, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the RO. In October 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding the issue indicated on the title page; a transcript of the proceeding has been associated with the record. Although a small portion of the transcript appears missing from the record, the Veteran has effectively waived his right to an additional hearing. Furthermore, given the favorable disposition of this claim, any procedural defect is harmless error. See 38 C.F.R. § 20.1102 (2017); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). FINDINGS OF FACT 1. The September 1986 rating decision failed to award a separate compensable rating for scars as a residual of laparotomy, despite evidence clearly showing that the Veteran suffered from a painful scar. 2. It is undebatable that the failure to appropriately consider the clear evidence of a painful scar manifestly changed the outcome of the claim. 3. The statutory and regulatory provisions then in effect were not properly applied by the Agency of Original Jurisdiction. CONCLUSION OF LAW The September 1986 rating decision contains clear and unmistakable error in failing to assign a separate compensable evaluation for residual scar from exploratory laparotomy. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A determination on a claim by the agency of original jurisdiction (AOJ) of which the claimant is properly notified is final if an appeal if not perfected. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 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. 38 C.F.R. § 3.105(a) (2017). In determining whether a prior determination involves CUE, the Court has established a three-prong test: (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 or 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. See 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 have been manifestly different but for the error. Generally, this would occur when the correct facts, as they were known at the time, were not before the AOJ, or the statutory or 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). In this case, the Veteran filed his original claim in July 1986 for "RUPTURED INTESTENT [sic]," and described the nature of his sickness, disease, or injury as, "SEE HEALTH RECORDS." See Application for Compensation or Pension, 1 (Sept. 10, 1986). The Veteran's health records, dated July 1986, clearly indicate that he had a painful scar. See Service Treatment Records, 7 (Oct. 2, 2014) (noting "pain over scar" with a diagnosis of "scar pain" and referencing the intestinal operation the Veteran had the month prior). Thus, painful scars should have been appropriately considered as part of his original claim. In September 1986, the AOJ awarded service connection for post-operative laparotomy, duodenal laceration repair, but failed to address the painful scar. See Rating Decision, 1 (Sept. 18, 1986). By failing to consider awarding a separate compensable rating for the Veteran's painful scar, the AOJ failed to correctly apply extant statutory and regulatory provisions, diagnostic code 7804. See Esteban v. Brown, 6 Vet. App. 259 (1994) (although the Esteban decision occurred after the Veteran's claim, this case merely clarified extant law; thus, its holding is binding on the instant case.). This failure, if it had not been made, would have manifestly changed the outcome of the decision. Based on the record and law that existed at the time of the original adjudication, there was CUE. Consequently, the September 1986 rating decision must be amended to appropriately include a separate compensable rating for painful scar as a residual of laparotomy for duodenal ulceration. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). (CONTINUED ON NEXT PAGE) ORDER There was clear and unmistakable error (CUE) in a September 1986 rating decision that failed to award a separate compensable rating for scars as a residual of laparotomy, and the appeal to revise that decision is granted. Subject to the law and regulations governing the payment of monetary benefits, a separate compensable evaluation for residual scar from exploratory laparotomy, effective from August 31, 1986, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs