Veteranclaims’s Blog

December 13, 2017

Winning CUE; Service Connection; Incorrectly Applied Extant Statutory & Regulatory Provisions; 38 C.F.R. § 3.158 (1949 & Supp. 1950, 1951);

Filed under: Uncategorized — Tags: , — veteranclaims @ 2:18 pm

Excerpts from decision below:

“the 1951 RO incorrectly applied the extant statutory and regulatory provisions”

==================

Even if the veteran’s symptoms did not warrant a compensable rating, based  upon the October 1951 VA examiner’s diagnosis of  “[r]esiduals, frostbite feet, mild,” R. at 95, the veteran was entitled, at a minimum, to a noncompensable rating under the regulation then in effect that provided for assignment of a no-percent rating when “a disability under any diagnostic classification … does not meet the minimum Rating Schedule standard under that classification.” 38 C.F.R. § 3.158 (1949 & Supp. 1950, 1951). Therefore, based on the undisputed evidence before the RO in 1951, the Court holds that the Board’s 2006 decision was not in accordance with the law in concluding that the 1951 RO decision did not contain CUE.

========================

Upon review of the Board’s decision, the Court concludes that the Board erred in dismissing the veteran’s assertion of CUE, and that the Board’s decision on the merits of the CUE claim was not in accordance with the law because the 1951 RO incorrectly applied the extant statutory and regulatory provisionsThe applicable statutes and regulation in effect in 1951 clearly stated that a diagnosis of frostbite was a disability for which VA benefits were available, regardless of whether or not symptoms were present. A 1951 regulation stated that “payment of disability compensation is authorized in cases where it is established that disabilities are shown to have been directly incurred in or aggravated by active military or naval service.” R. at 7; see 38 C.F.R. § 3.77 (1949 & Supp. 1950, 1951). 1 Further, it is clear that, in 1951,the Secretary defined “frostbite” as a “disability, “because the 1945 rating schedule (effective in 1951) lists “frostbite” as a condition for which compensation is available. Schedule for Rating Disabilities, Diagnostic Code (DC)7122 (1945); see 38 C.F.R., pt. 4, app. A (1965)(noting that the 1945 rating schedule, DC 7122, was  amended on July 6, 1950); see also 38 C.F.R. §4.104, DC 7122 (1965).  2 Additionally, another 1951 regulation provided for assignment of a “no-percent” rating when “a disability under any diagnostic classification … does not meet the minimum Rating Schedule standard under that classification.” 38 C.F.R. § 3.158 (1949 & Supp. 1950, 1951). 3 However, despite the existence of these applicable  regulations, in 1951, the RO concluded that service connection for residuals of frozen hands and feet was not warranted because it found 1 Title 38 of the Code of Federal Regulations was published in 1949. In 1950 and 1951, amendments to the 1949 edition were published in supplements but title 38 was not published in its entirety.  The 1950 and 1951 supplements indicate that no amendments to 38 C.F.R. §3.77 (1949) were made in 1950 or 1951.Therefore, 38 C.F.R. §3.77 (1949) was in effect in 1951 when the RO made its decision in the present appeal. 2 Prior to 1965, the Schedule for Rating Disabilities was not published as part of title 38 of the Code of Federal Regulations. In the 1965 edition of title 38 of the Code of Federal Regulations, the Schedule was published for the first time at Chapter 1, Part 4, with the VA Administrator noting in an introductory note to Part 4 that “[t]he following  Schedule for Rating Disabilities, commonly referred to as the 1945 rating schedule, which became effective April 1, 1946, is herewith made available as a public document ….The effective dates of the amendments since April 1, 1946, which have been incorporated in the schedule, are shown in …Appendix A. “Appendix A notes that the DC 7122 note was amended on July 6, 1950 to include the following sentence: “There is no requirement of loss of toes or parts for the persistent moderate [i.e. 20% rating] or mild [i.e. 10% rating] under this diagnostic code.”38 C.F.R. 4.104 DC 7122 (1965). 3 The 1950 and 1951 supplements to title 38, discussed in note 1, supra, indicate that no amendments to 38 C.F.R. § 3.158 (1949) were made in 1950 or 1951. Therefore, 38 C.F.R.§ 3.158 (1949) was in effect in 1951 when the RO made its decision in the present appeal. 4 that evidence of “frozen hands and feet [was] not found on last examination” and that “there is no record of the veteran having been treated for frozen hands and feet … and physical examination at time of discharge is negative.” R. at 114. The only evidence that the RO noted in its decision that pertained to frostbite was the October 1951 VA examination. Id. ; see R. at 95. The uncontroverted evidence of record in 1951, when the RO determined that service  connection was not warranted because of a lack of a diagnosis of a current disability, showed that the veteran was given an in-service diagnosis of frostbite during the May 14, 1951, discharge examination. R. at 132. The record also showed that, on June 22, 1951, upon examination of the veteran, a private physician made a diagnosis of “[s]plotches on chest, caused by poor circulation due to frost-bite.” R. at 107. In addition, the evidence discussed by the RO –the October 1951 VA examiner’s diagnosis of “residuals, frostbite feet, mild,”–favors the appellant’s claim that the veteran had a current disability in 1951. R. at 95. Under DC 7122, the Secretary defined the condition of frostbite as a “disability,” because the rating schedule extant at the time lists “frostbite” as a condition for which compensation is available.  Schedule for Rating Disabilities, Diagnostic Code (DC)7122 (1945). Even if the veteran’s symptoms did not warrant a compensable rating, based upon the October 1951 VA examiner’s diagnosis of “[r]esiduals, frostbite feet, mild,” R. at 95, the veteran was entitled, at a minimum, to a noncompensable rating under the regulation then in effect that provided for assignment of a no-percent rating when “a disability under any diagnostic classification … does not meet the minimum Rating Schedule standard under that classification.” 38 C.F.R.§3.158 (1949 & Supp. 1950, 1951). Therefore, based on the undisputed evidence before the RO in 1951,the Court holds that the Board’s 2006 decision was not in accordance with the law in concluding that the 1951 RO decision did not contain CUE. See 38 U.S.C. § 7261(a)(3)(A);  Livesay and Grover, both supra; 38 C.F.R. §20.1403. Because all of the evidence of record in 1951 supported the veteran’s position that he was entitled to service connection for frozen hands and feet, there was only one permissible view of the evidence, and the appellant’s allegation of CUE does not involve a weighing or reweighing of the evidence. See Sondel, 13 Vet.App. at 216. “[W]hen it is clear, on the face of the decision being assailed for CUE, that the error alleged did in fact occur and would manifestly have changed the outcome of the case, the Court will reverse, rather than only vacate and remand, as to the [Board]decision.” Id. at 221. It is clear from the 5 record that if the 1951 RO had not incorrectly applied to the evidence then of record the law in effect at the time of its decision, it would have granted the veteran’s claim for service connection for frostbite. 

===================

Designated for electronic publication only

 UNITED STATES COURT OF APPEALS FOR VETERANS  CLAIMS

NO  .07-0264

P  ATRICIA  J.W  ILMOTH  ,A  PPELLANT  ,

V  .

J AMES  B.P  EAKE  ,M.D. S  ECRETARY OF  V  ETERANS  A  FFAIRS  ,A  PPELLEE  ,

 

Before MOORMAN, Judge. MEMORANDUM DECISION  Note:Pursuant to U.S.Vet.App. R.30(a), this action may not be cited as  precedent. 

 

MOORMAN, Judge: The appellant, Patricia  J.Wilmoth, surviving spouse  of veteran  Maurice Wilmoth, appeals through counsel  a December 18, 2006, Board  of Veterans’ Appeals  (Board)decision that, among other things, determined that a December 1951 rating decision  denying the veteran service connection for  residuals of frozen hands and  feet did not contain clear  and  unmistakable error (CUE).Record (R.)at 3. The veteran died during the pendency of this  appeal, after the completion of briefing by both parties, Patricia Wilmoth, represented by the same counsel  who represented the veteran,moved the Court  for substitution as appellant.The Court  grants that  motion in a separate order. See Wilmoth v. Peake  ,U.S.Vet.App.No.07-0264 (unpublished order  Dec.9,2008).In his  brief, Mr.Wilmoth asserted that the  Board erred in dismissing his appeal  because the 1951 rating decision incorrectly applied the law  in effect at the time;he sought reversal  of the Board’s decision and an  award of service connection for frostbite  residuals on the basis of  CUE.Appellant’s Brief (App.Br.)at 6,15. He also explicitly stated that he was not  appealing that  part of the Board’s decision dismissing his assertion of CUE in the  1951 rating decision for its failure  to assign a compensable rating for  psychoneurosis.App.Br.at 3; see  R.at 15.Thus,the  Court  deems this issue abandoned on appeal. See Ford v. Gober  ,10 Vet.App.531,535 (1997). This  appeal is timely,and the Court  has jurisdiction pursuant to 38 U.S.C. §§7252(a)and 7266(a)to  review the Board’s decision.A single  judge may conduct this review. See Frankel v. Derwinski  , 1 Vet.App.23,25-26  (1990).For the  following reasons,the Court  will reverse the Board’s  determinations regarding the claim for service connection for frozen hands and feet  that (1)the 1951  RO correctly applied the laws and regulations extant  at the time and (2)the 1951  RO decision did  not contain CUE.The Court  will remand the matter for the  Board to  decide,consistent with the  following analysis,the appropriate effective date(s) and disability rating  (s).The Court will affirm  the remainder of the Board’s decision. Mr. Wilmoth served on active duty with the U.S. Marine Corps from  June 1946 to November  1947,and from July 1950 to  May 17,1951.R. at 19,47-48,50. He participated in the Chosin  Resevoir Campaign.R.at 9. As the Board noted in its decision  on appeal,”[e]vidence of record  showed that he had been  treated for frozen hands and  feet starting on November 30, 1950,and  continuing through December 1950 and January 1951.” R.at 9; see also  R.at 55,69,85,105. On  May 14,1951,he underwent a discharge  examination,and the examiner noted “[f]rostbite,hands  and feet”in his report.R.at 132-33. That same month,Mr. Wilmoth filed a claim for  frozen hands  and feet.R.at 84-88.On  June 22,1951,a private physician,upon examining  Mr. Wilmoth,found  “[s]plotches on chest,caused by poor circulation  due to frost-bite.”R.at  107.VA received this  report on November 26,1951. Id. In October 1951,a VA examiner  diagnosed Mr. Wilmoth as  having “[r]esiduals,frostbite feet,mild,without clinical  signs at present.”R.at 90, 95. In a December 1951  rating decision,the RO  denied Mr. Wilmoth’s claim  for service  connection for residuals of frozen hands and  feet,finding that evidence of “frozen hands  and feet  []not found on last examination”and that “there  is no record of the veteran having been  treated for  frozen hands and feet …and  physical examination at time of discharge is negative.” R.at 114-15. In a June 2003 rating decision,the RO granted service connection  for residuals of frostbite,effective  November 1,2002,based  in part upon a VA  diagnosis of “status post  cold injury residuals,” purportedly made in December 2003. R.at 403-411; see  R.at 635 (showing that Mr. Wilmoth  underwent VA examinations in November 2002, December 2002,and February 2003). In a July  2004 rating decision,the RO  determined that there was  no CUE in the December  1951 rating  decision.R.at 445-51.The  Board issued the decision here on appeal  in December 2006. A prior final RO decision must be  reversed or revised when the evidence establishes  clear  and unmistakable error. See  38 U.S.C. § 5109A. CUE is “a  very specific and rare kind of error . .. 2  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.” 38 C.F.R.§20.1403 (2008). CUE is established when the following  conditions have been met: First,either (1)the correct facts  contained in,or constructively contained in, the record were not  before the adjudicator,or  (2)the statutory or  regulatory provisions extant at  the time were  incorrectly appliedSee Grover v.West, 12 Vet.App. 109,112 (1999); Damrel v. Brown  ,6 Vet.App. 242,245 (1995). Second,the alleged  error must be “undebatable,”not merely a “disagreement  as  to how the facts were weighed or  evaluated.” Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); see also Sondel v.West, 13 Vet.App. 213, 216  (1999). Finally, the error  must have  “manifestly changed the outcome” of the prior decision.  Russell, 3 Vet.App. at 313-14; see Bustos  v. West, 179 F.3d 1378, 1380-81  (Fed.Cir.1999)(expressly adopting the  “manifestly changed” outcome language in  Russell, supra  ). The Court’s review of a Board decision regarding  an allegation of CUE in a prior  decision  is limited to whether the  Board’s decision was “arbitrary,capricious, an abuse of discretion,or  otherwise not in accordance with  law,” and whether the decision  is supported by an  adequate  statement of reasons or bases. 38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1); see also Livesay v. Principi, 15 Vet.App. 165, 174 (2001)(en banc). As part  of that review,however,the Court reviews de novo  all questions of law  and whether an applicable law or regulation was  appliedSee Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005). The Court also reviews whether the Board’s  decision is  supported by an adequate statement of reasons or bases. See  38 U.S.C. § 7104(d)(1); Russell, supra. The appellant contends that the Board, in  2006, erred when it did not find  that the 1951 RO  decision contained CUE. App.Br. at 10. The Board found that the December 1951 RO decision  was  not “undebatably erroneous” because “the  RO [did not]fail[]to  apply the proper statutory law  or  regulation, or [did not] appl[y]it  incorrectly” and because “no frostbite residuals  of the hands and  feet were in fact clinically identified  in December 1951.”R.at  13.The Board then stated  that the  veteran’s contentions amounted to unwarranted “challenges  [to]the factual conclusions reached by  the RO”regarding evidence of whether a current  disability existed in 1951. Id. After this discussion  of the merits of  the appeal,the Board  dismissed the appeal because  it found that the  veteran’s  contentions would require the Board “to  reweigh the evidence that was then  of record.”R.at 14. 3  Upon review of the Board’s decision,the  Court concludes that the Board erred in  dismissing  the veteran’s assertion of CUE,and that the  Board’s decision on the merits of the  CUE claim was  not  in accordance with the  law  because the 1951 RO  incorrectly applied the extant  statutory and  regulatory provisions. The applicable statutes and regulation in effect in  1951 clearly stated that a  diagnosis of frostbite was a disability for which  VA benefits were available,regardless of whether  or not symptoms were present. A 1951  regulation stated that “payment of disability compensation  is authorized in cases  where it is established that  disabilities are shown to  have been directly  incurred in or aggravated by active military  or naval service.”R.at 7; see  38 C.F.R.§3.77 (1949  &Supp.1950,1951). 1  Further,it is clear that, in 1951,the Secretary defined  “frostbite”as a  “disability,”because the 1945 rating schedule (effective in  1951) lists “frostbite”as a condition for  which compensation is available. Schedule for Rating Disabilities  ,Diagnostic Code (DC)7122  (1945); see  38 C.F.R., pt. 4, app.A  (1965)(noting that the 1945 rating  schedule,DC 7122,was  amended on July 6,1950); see also  38 C.F.R.§4.104,DC 7122 (1965). 2  Additionally,another 1951  regulation provided for assignment of a “no-percent”rating when “a disability  under any diagnostic  classification …does not meet  the minimum Rating Schedule standard under that  classification.” 38 C.F.R. § 3.158 (1949 &Supp. 1950,1951). 3  However,despite the existence of these applicable  regulations,in 1951, the RO concluded  that service connection for residuals of frozen  hands and feet was not warranted  because it found

1  Title 38 of the Code of Federal  Regulations was published in 1949.In  1950 and 1951,amendments to the  1949 edition were published  in supplements but title  38 was not published  in its entirety. The 1950 and 1951  supplements indicate that no amendments to 38 C.F.R. §3.77 (1949)were made in 1950 or  1951.Therefore,38 C.F.R. §3.77 (1949)was in effect in  1951 when the RO made its decision  in the present appeal. 2  Prior to 1965,the  Schedule for Rating Disabilities  was not published as part of title 38  of the Code of Federal  Regulations.In the 1965 edition of title 38  of the Code of Federal Regulations,the  Schedule  was published for the first  time at Chapter 1,Part 4, with the VA Administrator noting  in an introductory note to  Part 4 that “[t]he following  Schedule for Rating Disabilities,commonly referred to  as the 1945 rating schedule,which  became effective April 1, 1946,is herewith made available as a public document  ….The effective dates  of the amendments since April 1,1946, which have been incorporated in the schedule,are shown  in …Appendix A.”Appendix  A notes that the DC 7122 note  was amended on July 6,1950 to include  the following sentence:”There is no requirement of  loss of toes or parts for the  persistent moderate [i.e.20%rating]or  mild [i.e.10%rating]under this diagnostic  code.”38 C.F.R.4.104 DC 7122  (1965). 3  The 1950 and 1951 supplements  to title 38,discussed in  note1, supra  ,indicate that no amendments  to  38 C.F.R.§3.158 (1949)were made in  1950 or 1951.Therefore,38 C.F.R.§ 3.158 (1949)was in effect in 1951  when  the RO made its decision in the  present appeal. 4  that evidence of “frozen hands and feet  [was]not found on last examination”and  that  “there is no  record of the veteran having been treated  for frozen hands and feet . ..and physical examination at  time of discharge is negative.” R.at 114.The only  evidence that the RO noted in  its decision that  pertained to frostbite was the October  1951 VA examination. Id. see  R.at 95. The uncontroverted evidence of  record in 1951,when  the RO determined that  service  connection was not warranted because of  a lack of a diagnosis of  a current disability  ,showed that  the veteran was given an  in-service diagnosis of frostbite during  the May 14,1951,discharge  examination.R.at 132. The record also showed that,on  June 22,1951,upon examination of  the  veteran,a private physician made a diagnosis of “[s]plotches  on chest,caused by poor circulation due  to frost-bite.”R.at  107. In addition,t  he evidence discussed by the  RO –the October 1951 VA  examiner’s diagnosis of “residuals,frostbite feet,mild,”–favors  the appellant’s claim that the veteran  had a current disability in 1951. R.at 95. Under DC 7122,the Secretary defined the  condition of  frostbite as a “disability,” because the rating schedule  extant at the time  lists “frostbite”as a  condition for which compensation is available. Schedule for Rating Disabilities  , Diagnostic Code  (DC)7122 (1945). E  ven if the veteran’s symptoms did  not warrant a compensable rating,based  upon  the October 1951 VA examiner’s diagnosis  of “[r]esiduals, frostbite feet,mild, ” R. at 95, the  veteran was entitled, at a minimum, to a  noncompensable rating under the regulation then in effect  that provided for assignment  of a no-percent rating  when “a disability under  any diagnostic  classification …does not meet  the minimum Rating Schedule standard under that  classification.” 38 C.F.R.§3.158 (1949 &Supp. 1950,1951). Therefore, based on the undisputed evidence before the RO in  1951, the Court holds that the  Board’s 2006 decision was not in accordance with  the law in concluding that the 1951 RO decision  did not contain CUE. See  38 U.S.C. § 7261(a)(3)(A); Livesay  and  Grover, both  supra  ; 38 C.F.R. § 20.1403. Because all of  the evidence of record in 1951 supported  the veteran’s position that he  was entitled to service connection for frozen hands and feet,there was only one  permissible view  of the evidence,and the appellant’s allegation  of CUE does not involve a weighing  or reweighing  of the evidence. See Sondel  ,13 Vet.App.at 216. “[W]hen it is clear,on the face of the  decision being assailed for CUE, that the error alleged did in fact occur and would manifestly have changed the outcome  of the case, the Court will reverse, rather than only vacate and remand, as to the [Board]decision.” Id . at 221.It  is clear from the  5  record that if the 1951 RO had not incorrectly applied to the  evidence then of record the law in effect at the time of its  decision,it would have granted  the veteran’s claim for service  connection for  frostbite.The Court will,therefore,reverse the Board’s determination that  the 1951 RO decision did  not contain CUE and the  Board’s dismissal of the CUE  claim . See  38 U.S.C. § 7261(a)(3)(A); Grover  and  Russell  ,both  supra  see also Johnson v. Brown  , 9 Vet.App. 7, 10 (1996)(“[W]hen the  only permissible view of the  evidence is contrary to that  found by the [Board],reversal  is the  appropriate remedy.”); Hersey v. Derwinski  , 2 Vet.App. 91, 95 (1992)(reversing the  Board’s  determination when the Court found that  it was “clearly erroneous in light  of the uncontroverted  evidence in [the]appellant’s favor”); Gilbert  ,1 Vet.App. 49, 52-53 (1990)(the Court  may reverse  the Board’s determination when the Court possesses  a “definite and firm conviction that a mistake  has been committed”).On remand, the Board is instructed to assign the  appellant an appropriate  effective date for the veteran’s award of service  connection for frostbite,the appropriate disability  rating(s)for the award of service connection for  frostbite,and the appropriate effective date(s)for  the disability rating(s).In  this regard,the Board is to  determine whether the “minimum Rating  Schedule standard”allowed for a compensable rating for the  period of the award from the veteran’s  discharge from service until November  1,2002,the current effective  date.38 C.F.R.§ 3.158  (1949 &Supp.1950, 1951). Staged ratings,or separate disability ratings  for separate periods of  time,should be assigned based  upon the facts found, if appropriate. See Fenderson v.West  , 12 Vet.App.119,126 (1999). Having concluded that reversal  is warranted and having  granted, in a separate  order, Mrs.Wilmoth’s motion for substitution as  a party to this appeal,the  Court will issue its decision  nunc pro tunc to the day before Mr. Wilmoth’s death,which occurred on January 11,2008. This is  consistent with the Federal Circuit’s holding in  Padgett v.Nicholson, 473 F.3d 1364 (2007),that  nunc pro tunc relief is appropriate if an individual could  be substituted on the appeal for the veteran. See Padgett  ,473 F.3d at 1370.The  Federal Circuit held that nunc pro tunc  relief is appropriate in  a case where a Court decision  on the issues briefed by the  veteran would “finally”decide those  issues and result in a “final agency adjudication”of the veteran’s  claim. Compare Padgett  ,473 F.3d  at 1369 (stressing importance of “final” determination of issues relating to  the accrued-benefits  claim), with Pelea v.Nicholson  ,497 F.3d 1290,1293  (Fed.Cir.2007)(denying substitution and  nunc pro tunc relief where this Court’s  judgment on the issues “would not  entitle [movant]to any  6  accrued benefits”because this Court had held only that the  Board should further consider the issues  and movant thus “was a long way from establishing”entitlement  to benefits”).This decision finally  decides the issues briefed by Mr.Wilmoth  that relate to Mrs.Wilmoth’s accrued-benefits claim. Based on the foregoing  analysis and a review  of the record on  appeal,the Board’s  December 18, 2006, dismissal of the CUE  claim and determination that the 1951 RO  decision did  not contain CUE as to  the veteran’s claim for service  connection for frozen hands and  feet are  REVERSED and the matter is REMANDED for  the Board to  assign an appropriate  effective date  for the award of service connection  for frostbite of the hands and  feet,the appropriate disability  rating(s)for the award of service connection for frostbite of  the hands and feet,and effective date(s) for those disability rating(s). The remainder  of the Board’s decision is AFFIRMED.

DATED:December 9, 2008

Copies to:

Robert W. Legg, Esq.

VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.