Citation Nr: 21026085 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-42 189 DATE: April 29, 2021 REMANDED Entitlement to revision of a July 19, 1960, rating decision that assigned an initial noncompensable rating in its award of service connection for residuals of right fourth metacarpal fracture with post-arthroplasty scar on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1958 to March 1960. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a January 2019 Central Office hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. In a March 2019 decision, the Board denied the Veteran’s motion for revision of a July 19, 1960, rating decision that assigned an initial noncompensable rating in its award of service connection for residuals of right fourth metacarpal fracture with post-arthroplasty scar on the basis of CUE. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A July 2020 memorandum decision of the Court set aside and remanded the March 2019 Board decision for readjudication. The Court found that the Board provided an inadequate statement of reasons or bases for its decision that the Veteran’s assertion that his claim warranted reevaluation under 38 C.F.R. § 3.156(c) to be “without merit.” The Court highlighted date stamps of receipt on the Veteran’s service treatment records that document its association with the claims file subsequent to the May 1960 VA examination and July 19, 1960 rating decision. It further noted that the July 19, 1960 rating decision also appeared to omit information regarding the Veteran’s injury of record, including his second surgical procedure. The Court directed the Board to determine whether the Veteran’s complete service treatment records were associated with the claims file at the time of the May 1960 VA examination and subsequent July 19, 1960 rating decision. The evidence of record reflects that the Veteran submitted a claim of service connection for a “right hand condition (malunion of fracture) – November 1958” in an Application for Compensation (VA 21-526) that was received by the RO on April 19, 1960. The Board notes that the Veteran’s claim was received within a year of his separation from active service. In a July 19, 1960 rating decision, the RO granted service connection for residuals of right fourth metacarpal fracture with post-arthroplasty scar with a noncompensable rating, effective March 17, 1960 (the day following separation from active service). Upon its review of the record at the time of the rating decision at issue, the Board finds that the Veteran’s complete service treatment records were not associated with the claims file at the time of the RO’s determination. Although the record contains service treatment records with a date stamp of July 8, 1960 and July 11, 1960, there were other records with a date stamp receipt of July 26, 1960, seven days after the issuance of the July 19, 1960 rating decision. The Board also notes that the May 1960 VA examination report’s references to the Veteran’s treatment, including surgical history, of the right hand were discussed under Section B concerning the medical history “as related by person examined.” Thus, the Board finds that the Veteran’s complete service treatment records were not of record at the time of the July 19, 1960 rating decision. Notwithstanding the subsequent association of service treatment records, the Board also notes that in September 1960, the Veteran’s physician submitted a letter on behalf of the Veteran. The physician reported physical examination and x-ray findings related to the Veteran’s right hand. Thereafter, the Veteran submitted an Application for Compensation for “severe pain, right hand,” which was received by the RO on January 10, 2003. The RO characterized the appeal as an increased rating claim, and in a May 2003 rating decision, increased the assigned rating to 10 percent disabling, effective January 10, 2003. The record subsequently reflects that the Veteran’s representative filed a motion for reconsideration pursuant to 38 C.F.R. § 3.156(c) in July 2017. The motion was followed by a July 2017 Fully Developed Claim (VA 21-526EZ) for reconsideration of residuals of right fourth metacarpal fracture with post-arthroplasty scar. In a July 2017 Statement in Support of Claim (VA 21-4138), the Veteran requested reconsideration of his service-connected right finger disability based on CUE and directed attention to the prior July 2017 filings. The July 2017 Fully Developed Claim serves as the basis for the issue currently on appeal. In an August 2017 rating decision, the RO determined that no revision was warranted in the evaluation of the Veteran’s residuals of right fourth metacarpal fracture with post-arthroplasty scar. In February 2018, the Veteran timely submitted a Notice of Disagreement and in August 2018 perfected the appeal. As discussed above, pursuant to 38 C.F.R. § 3.156(c), the July 19, 1960 rating decision that granted service connection for residuals of right fourth metacarpal fracture with post-arthroplasty scar and assigned an initial noncompensable rating, effective March 17, 1960 must be reconsidered. The rating decision is not final nor are the following pertinent rating decisions of record. Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. The matter is REMANDED for the following action: After accomplishing any development deemed necessary, e.g., obtaining a retrospective medical opinion assessing the severity of the Veteran’s disability, readjudicate the July 19, 1960 determination which assigned an initial noncompensable rating for the Veteran’s service-connected residuals of right fourth metacarpal fracture with post-arthroplasty scar, effective March 17, 1960. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.