Citation Nr: 21061309 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-00 862 DATE: October 1, 2021 ORDER Entitlement to service connection for residuals of a right hand injury is dismissed. The issue of whether the August 2009 decision not to adjudicate a claim of entitlement to service connection for residuals of a left index finger laceration constitutes clear and unmistakable error (CUE) is dismissed. Entitlement to service connection for residuals of a left index finger laceration is granted. FINDINGS OF FACT 1. On June 29, 2021, prior to the promulgation of a decision in the appeal, during a Board hearing on the record, the Veteran requested a withdrawal of his appeal for entitlement to service connection for residuals of a right hand injury. 2. At the time of the May 2012 rating decision on appeal was issued, the AOJ had not issued a decision adjudicating the Veteran's claim of entitlement to service connection for residuals of a left index finger injury. 3. The Veteran's claim alleging CUE fails to specifically identify an alleged error in a prior rating decision; did not set forth clearly and specifically the alleged CUE or error(s) of fact or law in a VA decision; did not identify a legal or factual basis for such allegation(s); and did not explain why the result would have been manifestly different but for the alleged error(s). 4. Resolving reasonable doubt in the Veteran's favor, he has residuals of an in-service left index finger injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for residuals of a right hand injury have been met. 38 U.S.C. § 7105; 38 C.F.R.§ 19.55. 2. The pleading requirements for a motion for revision of a decision for entitlement to service connection for residuals of a left index finger laceration based on CUE have not been met. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105(a). 3. The criteria for service connection for residuals of a left index finger laceration have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from January 1974 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the claims were appealed to the Board as entitlement to service connection for right hand/fingers disability, and whether there was CUE in an August 2009 rating decision which failed to address a claim of service connection for left index finger. During the 2021 Board hearing, the Veteran stated he was seeking an "increased rating" related to his left hand; however, this was clarified that he has always been seeking entitlement to an additional 10 percent rating for his left index finger ("I'm just claiming the other finger"). Board Hearing transcript, page 12. He wondered if the Board would be able to provide a "separate" 10 percent rating for his left index finger in this decision. However, an increased rating claim for his left middle finger/left hand is not on appeal, so providing a "separate" 10 percent rating is not a benefit which the Board can provide in this decision. The Board is able to grant entitlement to service connection for left index finger residuals with this decision; however, the AOJ will have to provide an initial rating. Although referral was briefly discussed in the Board hearing, as the Veteran clarified that he is seeking a "separate" rating for his left index finger, and not an increased rating for his left long finger (for which the Veteran is receiving the highest schedular rating), the Board will not refer a claim for an increased rating for the left middle finger. 1. Entitlement to service connection for residuals of a right hand injury is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, with the help of his authorized representative, has withdrawn the appeal for service connection for a right hand disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran withdrew his claim for service connection for a right hand disability during his June 2021 Board hearing. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The VLJ noted during the hearing that if the Veteran withdrew his "appeal for that service connection of the right-hand injury, it means that [she would] not make a decision on the issue...it means [the Veteran was] no longer pursuing a claim for benefits as to that particular issue," and that if he later wanted to seek compensation for that issue, he would have to file a new claim. The Veteran noted that he understood "the consequences" of withdrawing his claim. See Board hearing, pages 3 and 4. The Veteran noted that he never meant to file a claim for his right hand, and that "this morning was the first time [he] ever heard about the right hand." He was not seeking service connection for his right hand, and had never intended to file a claim for his right hand. See Board Hearing, page 13-14. The Board finds that the hearing transcript satisfies the requirement for a written withdrawal in 38 C.F.R. § 19.55. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Whether the AOJ's failure to adjudicate a claim of entitlement to service connection for residuals of a left index finger laceration constitutes CUE is dismissed. The Veteran contends that VA committed CUE by not adjudicating a claim of entitlement to service connection for residuals of a left index finger laceration. The Veteran argued that his May 2009 claim for "loss of grip in Left hand/had surgery done on hand while in service, since then have experienced pain in knuckles and joint in that hand. and can't hold onto items in that hand" was a claim for both fingers that were injured in service. He is currently service-connected for residuals of his left long finger fracture and laceration. A claim asserting CUE is a form of collateral attack on an otherwise final rating decision issued by a VA RO. See, e.g., Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it 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 prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Essentially, CUE is an avenue by which a claimant may correct an error that was made in an earlier rating decision that has become final. With regards to CUE, no new evidence is presented. It is the claimant's burden to show that in the prior decision, an administrative error occurred that failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. If the claimant successfully shows CUE in the prior decision, that decision is reversed, and the effective date will be as if the claim had been granted at the time of the denial. CUE is a very specific and rare kind of error. To revise a decision on the grounds of CUE, there must have been an error which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have resulted, the error complained of cannot be CUE. That is, "but for" the alleged error, the outcome would have been "manifestly different," a conclusion to which "reasonable minds could not differ." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). An allegation of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000). The Board notes that failure to adjudicate a claim cannot rise to the level of CUE in that failure to adjudicate is not outcome determinative. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); cf. Crippen v. Brown, 9 Vet. App. 412, 420 (1996) (where failure to reopen was not sufficient to plead CUE). There can be no CUE finding absent a final and binding decision. 38 C.F.R. § 3.104. See Norris v. West, 12 Vet. App. 413, 419-22 (1999) (RO failure to adjudicate an informally raised claim did not constitute a final disallowance of the claim and, therefore, there was no final adverse decision subject to CUE attack). The Board additionally notes that VA's "failure to adjudicate a reasonably raised claim can be the basis of a CUE motion as to a final decision where the issue was relevant to a decision actually made." Ingram. v. Nicholson, 21 Vet. App. 232, 254-55 (2007). If VA merely failed to adjudicate a reasonably raised claim, however, the only issue to be considered would be entitlement to an earlier effective date based on the date of claim or the date entitlement arose, as opposed to whether CUE was committed because a reasonably raised claim "remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." See Id. at 243; see also Adams v. Shinseki, 568 F.3d 956, 962-963 (Fed. Cir. 2009); Cogburn v. Shinseki, 24 Vet. App. 205 (2010). In this case, at the time of the 2012 rating decision on appeal, there was no final adverse decision subject to CUE attack regarding entitlement to service connection for residuals of a left index finger injury. The August 2009 rating decision, which the Veteran alleges contains CUE because the AOJ failed to adjudicate a left index finger service connection claim, singularly addressed residuals of laceration and fracture of the left long (middle) finger. Accordingly, the Veteran's CUE claim is without legal merit. 3. Entitlement to service connection for residuals of a left index finger laceration is granted. When a claim is filed or is reasonably raised, it will remain pending until there is an explicit adjudication for the same disability or until the claimant could reasonably recognize in a subsequent agency decision that the claim was fully adjudicated. Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). On May 13, 2009, the Veteran submitted a claim for "loss of grip in left hand/had surgery done on hand while in service, since then have experienced pain in knuckles and joint in that hand. and can't hold onto items in that hand." There are limited service treatment records available for the Veteran. A July 12, 1975 record included complaint of an infected left "1st finger;" the wound was still open and inflamed. The finger was stary striped and immobilized. On August 12, 1975, the Veteran complained of "problem in left finger" for a month, with pain and swelling. However, this record did not indicate which finger was symptomatic. An August 24, 1975 record noted improper healing of a fracture of the 3rd phalanx of left hand. The limited records do not include a record from July 3, 1975, the day of the injury, until July 12, 1975. On August 19, 2009, the Veteran participated in a VA hand and finger examination. The examiner noted the August 24, 1975 treatment record of a laceration and fracture of the 3rd finger, but the examiner did not note the July 12, 1975 record of the "left 1st finger" wound. The examiner noted the Veteran's history of an injury to the "left hand, a laceration with fracture. Lacerations were sutured up." The fracture to the PIP joint of the middle finger had difficulty healing. He reported aching, soreness, and tenderness over the index MP joint and the PIP and MP joint of the long finger. He was left-handed, so had some trouble with gripping and grabbing due to fingers. Examination showed pain and tenderness over the PIP joint of the left middle finger and pain and tenderness in the MP joints of the index and long fingers. He was diagnosed with "residual laceration and fracture long finger left hand." Given the Veteran's vague wording on his May 2009 claim (for his "left hand" and "knuckles" and "joints"), as well as his service treatment records indicating 1st and 3rd finger injuries (later described as the index and middle/long fingers), and his VA examination including complaint of pain in the index and middle fingers, the Board finds that an informal claim of entitlement to service connection for residuals of a left index finger injury was reasonably raised. An August 29, 2009 rating decision granted entitlement to service connection for residuals of laceration and fracture of the left long finger. Although the rating decision included the findings from the August 2009 VA examination, it only noted the in-service injury to the left middle finger. A denial of service connection for the left index finger was not explicitly or implicitly rendered in the August 2009 rating decision. In March 2011, the Veteran submitted a statement that it was "unclear" to him if his claim for service connection for his left index finger had been decided in the August 2009 rating decision. He argued that both of his fingers should have been rated. Unfortunately, this statement included that his prior claim referred to "injuries of the right hand." The AOJ then adjudicated issues related to the Veteran's right hand and fingers. The Veteran alleged CUE was committed in the August 2009 rating decision because his left index finger claim was not adjudicated. The wording of the 2009 rating decision, the notice which did not address the index finger at all, and the March 2011 statement all support that a reasonable person (the Veteran) would not have deduced that a claim for his index finger was adjudicated in the 2009 rating decision. See generally Adams v. Shinseki, 568 F.3d 956, 962-963 (Fed. Cir. 2009); Cogburn v. Shinseki, 24 Vet. App. 205 (2010). As such, the Board considers the May 2009 reasonably raised claim of entitlement to service connection for residuals of a left index finger to be unadjudicated and the claim is still pending. The May 2012 rating decision on appeal found that a CUE error was not made in the August 2009 rating decision. The AOJ found that there was "no evidence of an injury to [the Veteran's] left index finger" in his service treatment records. "Service treatment records show that [he] injured [his] left second finger. Therefore, since there is no evidence of an injury to [his] index finger in service, a separate evaluation is not warranted." The Veteran then appealed the May 2012 rating decision, framed as a CUE determination, to the Board. However, the Board notes that the 2012 rating decision provided an opinion on the merits of the service connection claim for left index finger, quoted above. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) During his June 2021 Board hearing, the Veteran testified that while working a detail he injured his left hand "raising a push out window" which "crashed back down on his hand" and he sustained injuries to his left middle and index fingers. He stated he "had surgery done on both fingers at the same time" in service. He stated he separated from service at 20 years old and "just ignored" his hand problems. However, they progressed with time and age, and now he has complaints regarding function of his fingers and hand grip. He testified that both fingers were injured in service, and he actually had more pain in his index finger in service than he had in his middle finger; however, his middle finger had a deformity, so it was addressed more in the treatment records. Here, the Board finds that service treatment records indicated an injury to the left index finger with laceration and infection. A 2009 VA examination included complaint of ongoing pain in the MP joint of the index finger, objective pain, and tenderness in the MP joint of the index finger, with diminished grip and grasp. The Veteran testified that his index and middle fingers were injured in service, and he had ongoing symptoms from injury to the present, which progressed with age and time. Resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for residuals of left index finger laceration is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.