Citation Nr: 21002492 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-31 228 DATE: January 13, 2021 ORDER Entitlement to an earlier effective date of October 28, 1971 for the grant of special monthly compensation (SMC) for loss of use of upper right extremity on the basis of clear and unmistakable error (CUE) in a November 1971 rating is denied. FINDING OF FACT The November 1971 rating decision that denied additional compensation for loss of use of right elbow was not clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for an earlier effective date of October 28, 1971 for the grant of special monthly compensation for loss of use of upper right extremity on the basis of CUE in a November 1971 rating decision are not met. 38 U.S.C. §§ 5109A, 5110 (2012); 38 C.F.R. §§ 3.105(a), 3.151(a), 3.400 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Marine Corps from May 1967 to January 1969 including service in the Republic of Vietnam. He was awarded multiple Purple Heart Medals for gunshot wounds in combat. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the July 2014 rating decision issued by a Department of Veterans Affairs (VA) denying an effective date earlier than October 22, 2010 for special monthly compensation for loss of use of right upper extremity based on clear and unmistakable error (CUE) in a November 1971 rating decision which denied additional compensation for loss of use of right elbow. An October 2018 Board decision denied entitlement to an earlier effective date for SMC and determined that there was no CUE in the November 1971 rating decision. The Veteran appealed the decision to the United States Court of Appeals for Veteran’s Claims (Court). In April 2020, the Court set aside the October 2018 Board decision and remanded the claim for additional adjudication of the claim consistent with the decision. Entitlement to an earlier effective date of October 28, 1971 for the grant of special monthly compensation (SMC) for loss of use of upper right extremity on the basis of clear and unmistakable error (CUE) in a November 1971 rating As indicated above, the Board finds that the Veteran is not entitled to earlier effective dates of October 28, 1971 for the grant of SMC for loss of use of right upper extremity. In making this determination, the Board finds no CUE in a November 1971 rating decision. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If VA receives a claim within 1 year after separation from service, the effective date shall be the day following separation from active service or the date entitlement arose. See id. at § 3.400(a)(2). For a veteran to be awarded an effective date based on an earlier claim that became final and binding, he or she must collaterally attack the prior decision and show there was CUE in the manner VA decided the prior claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). As to pleading CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If the error alleged is not the type of error that, if true, would be CUE on its face; if the Veteran is only asserting disagreement with how the VA evaluated the facts before it; if the Veteran has only alleged a failure on the part of VA to fulfill its duty to assist; or if the Veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The record reflects that on October 28, 1971, Veteran submitted an informal claim for loss of use of right elbow. See VA 21-4138, October 1971. In a November 1971 rating decision denied additional benefits for the Veteran’s right elbow condition which was service connected and rated as 60 percent disabling. See Deferred Rating, November 1971. The RO noted that additional benefits were payable only for loss of use hand or foot. The Veteran did not submit a timely notice of disagreement within one year of the November 1971 decision. Therefore, the decision became final. As the November 1971 decision is final, it is not subject to revision in absence of CUE. See 38 U.S.C. §§ 5109A, 7105. The Veteran asserts that the RO erred in the November 1971 rating decision by not considering evidence of record in not adjudicating a claim for entitlement SMC for loss of use. In October 2018, the Board found that in November 1971 the RO properly found that the governing regulations did not provide for SMC for loss of use of an elbow, only for loss of use of a hand or foot. In an April 2020 Memorandum Decision, the Court vacated the Board decision because the Board did not point to evidence that weighed against a finding that the Veteran met the definition of loss of use of the hand and did not adequately explain why an RO error was not undebatable. A review of the Veteran’s service treatment records (STRs) on file at the time of the RO decision reveals that the Veteran sustained received a gunshot wound to the right shoulder in December 1967. On arrival at an evacuation hospital, a clinician noted that a projectile was retained in the upper arm and not removed. The wound was debrided with good results and with no loss of range of motion of the shoulder. After three weeks, he was found fit for duty. In March 1968, the bullet was removed from the right axilla. He was found fit for duty after one week. In part because of other injuries including serious lower abdominal, hip an buttocks injuries, he was placed on a sick list in May 1968 and admitted to hospital care in July 1968. Records of this care for the next several months are very detailed. Clinical notes that pertain to the right arm are as follows: "hand swollen, could not turn arm" (July 22, 1968);"he does complain of pain in IV arm"(August 2, 1968), "complained about the IV hurting where the needle enters the vein"(August 3, 1968), "IV #4 absorbed but infiltrated into surrounding tissue –discontinued" (August 4, 1968); "he has been exercising right arm and making progress"(September 8, 1968),"complaints of pain in the legs and right arm"(September 30, 1968). The context of these notations is that the Veteran was receiving intravenous fluids and antibiotics and underwent several surgical procedures other than for the arm. Despite the clear level of detailed clinical observation, there was no observation of any lack of function of his hand. The November 1968 Medical Board examination noted that “[the Veteran’s] right elbow is permanently flexed at approximately 45 degrees” and the examiner diagnosed flexion contracture, partial right elbow. Again, despite the level of detail in the report, there is no mention of dysfunction of the hand or shoulder either in the narrative or the list of final diagnoses. Following his discharge, he was transferred to a VA hospital for further treatment until released from the hospital in May 1970. A review of 1970 VA treatment records reveals that on February 4, 1970, the Veteran reported gradually developing fixation at the right elbow following gunshot wound in the right shoulder. See Medical Treatment Record-Government Facility, May 1970 at p.5 of 12. Examination notes reveal that the Veteran’s right elbow was in flexion and fixed. Id. A February 9, 1970 examination report notes “R.U.E. ankylosis elbow joint in a carrying angle of about 25 degrees.” “Supination and pronation normal.” “Shoulder, wrist, and finger joints normal,” and “pt. unable to bring right hand to his mouth for feeding due to lack of flexion of right elbow.” Id. at p.7, 8 of 12. Despite the level of detail in the examination, there were no observations of a loss of function of the hand for such actions as grip and manipulation of the hand. Finger joints were noted as normal which would not preclude hand function in positions other than at the face including holding objects, handwriting, using a keyboard, using keys or a knob to open doors or grasping objects for stability. In the May 1970 rating decision, the rating board found that the ankylosis of the right elbow warranted a 60 percent rating under Diagnostic Code 5205 for unfavorable position at an angle of less than 50 degrees. The rating board including a medical officer noted that a loss of use of the entire right upper extremity was not shown. In October 1971, the Veteran filed a claim for benefits for, inter alia, “loss of use of my right elbow.” In a November 1971 deferred or confirmed rating decision, the RO indicated that the Veteran should be advised that there are no additional benefits payable for the right elbow condition evaluated at 60% disabling and that additional benefits were payable only for loss of use of hand or foot. That same month, the RO informed the Veteran of this in a letter indicating: “No additional benefits are payable for your right elbow condition. Although you claim loss of use of your right elbow, additional [VA] benefits are payable only for loss of use of hand or foot.” The Veteran was asked to furnish any additional information relevant to the claim. He did not respond with an assertion that he had loss of use of the hand or a desire to appeal this decision and it became final. At the time of the 1971 RO decision, as now, VA regulations provide for SMC for "[l]oss of use of a hand . . . [that] will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow...with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, . . . could be accomplished equally well by an amputation stump with prosthesis." 38 C.F.R. § 4.63 (1970); see 38 C.F.R. §§ 3.350(a)(2)(i)(2019), 4.63(a) (2019). Then, as now, there is no regulatory or statutory provision allowing for SMC for loss of use of an elbow. Upon further review, the Board finds that there was no error in the RO’s determination, there was no loss of use of the right hand, that there was no loss of use of the entire right upper extremity. Although it might have been debatable whether the ankylosis of the elbow was intended by the regulation to include SMC criteria for the hand or the entire upper extremity, the evidence clearly did not show that the Veteran had lost the use of his hand in any function other than positioning it to his face. There were detailed clinical records in which loss of hand function (or the entire extremity except the elbow) would have been noted, notwithstanding the one-time swelling and several notations of discomfort from an intravenous injection during treatment for other serious injuries. The Veteran was provided the opportunity to further show additional loss of function of the hand, elbow or entire upper extremity and did not do so. The medical records clearly showed clinical observation of “Shoulder, wrist, and finger joints normal.” The RO correctly evaluated the evidence of record. Regardless of any debate about whether ankylosis of the elbow alone constituted a loss of use of the hand, the Veteran had use of his hand and shoulder for functions other that raising the hand to the face. The Court called attention to the July 2011 rating decision that ultimately granted SMC for loss of use of the hand based on a December 2010 examination that it did not review. At that time, the record contained an October 2010 letter from a VA physician who noted that the Veteran had “limited use of the right arm and loss of use of the right elbow.” In the December 2010 examination which was for the purpose of assessing the need for aid and attendance, the examining physician noted that after service, the Veteran had worked as a civilian contract specialist for the Army for 25 years and at a brokerage house prior to retirement in 2010. Regarding residuals of the elbow wound, the physician noted that the Veteran had a fused elbow and concluded without further explanation or observation that he had loss of use of the right upper extremity. He further noted that the Veteran needed assistance in getting dressed and transferring to the shower but could feed himself but “needs devices to hold on to.” Not only were these observations not of record in 1970 and 1971, but the loss of use of the right upper extremity was an opinion provided by this physician that is not completely supported by his observations. Nevertheless, the grant of SMC by the RO in July 2011 resolved doubt in favor of the Veteran and relied on the new observations of two physicians that noted the continued fixation of the elbow but found in their view that it constituted the loss of use of the right upper extremity – observations that were not of record and also not supported by the medical records available in 1970 and 1971. Not only can this evidence not be considered in assessing CUE, but it is incorrect that there were no changes in the evidence and medical assessment from 1971 to 2010. In summary, the November 1971 rating decision was supported by the evidence then of record, and was consistent with the laws and regulations in effect. Consequently, the appeal seeking to establish that there was CUE in that decision must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.