Veteranclaims’s Blog

April 19, 2020

Single Judge Application; SMC 1971; CUE 1971; 38 C.F.R. § 4.63 (1970); 38 C.F.R. §§ 3.350(a)(2)(i) (2019); 4.63(a) (2019); Cousin v. Wilkie, 905 F.3d 1316, 1321 (Fed. Cir. 2018) (finding CUE in a 1954 RO decision based on a legal error and the Secretary’s concessions that the undisputed facts favored the veteran);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0802
GREGORY COPELAND, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Self-represented veteran Gregory Copeland appeals an October
25, 2018, Board of Veterans’ Appeals (Board) decision that determined that there was no clear and
unmistakable error (CUE) in a November 1971 regional office (RO) decision denying special
monthly compensation (SMC) for loss of use of the right elbow. Record (R.) at 4-10. For the
reasons that follow, the Court will set aside the October 2018 Board decision and remand the
matter for further adjudication consistent with this decision.
I. FACTS
Mr. Copeland served honorably on active duty service in the U.S. Marine Corps from May
1967 to January 1969, including service in Vietnam. R. at 1027. In December 1967, he sustained
a gunshot wound to the right shoulder. R. at 953. In March 1968, the bullet was surgically removed
from his right shoulder. R. at 956. In May 1968, he sustained a second gunshot wound to the left
buttock. R. at 976.
Mr. Copeland’s service treatment records (STRs) include the following treatment notes:
“hand swollen, could not turn arm” (July 22, 1968), R. at 654; “he does complain of pain in IV
arm” (August 2, 1968), R. at 879; “complained about the IV hurting where the needle enters the
2
vein” (August 3, 1968), R. at 881; “IV #4 absorbed but infiltrated into surrounding tissue –
discontinued” (August 4, 1968), id.; “he has been exercising right arm and making progress”
(September 8, 1968), R. at 764-65; “complaints of pain in the legs and right arm” (September 30,
1968), R. at 606.
In a November 18, 1968, Medical Board examination, the examiner noted that Mr.
Copeland was right handed and that his “right elbow is permanently flexed at approximately 45
degrees,” and he diagnosed flexion contracture, partial right elbow. R. at 1070, 74.
In April 1969, Mr. Copeland filed claims for VA benefits, R. at 1040-43, and later that
month, the RO deferred for further development a claim for benefits for a right elbow condition,
R. at 1038-39. In December 1969, the RO granted service connection for a right elbow condition.
R. at 930.
A February 1970 treatment record noted that Mr. Copeland’s right upper extremity was
locked in a carrying angle of about 25 degrees and that he was “unable to bring [right] hand to his
mouth for feeding due to the lack of flexion of [right] elbow.” R. at 909-10. In a May 1970 decision,
the RO assigned a 60% evaluation for Mr. Copeland’s service-connected right elbow condition,
but determined that “[l]oss of use of this right upper extremity is not shown.” R. at 898-900.
In October 1971, Mr. Copeland filed a claim for benefits for, inter alia, “loss of use of my
right elbow.” R. at 486. In a November 1971 decision, the RO advised Mr. Copeland that there
were 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 a hand or foot. R. at 480-81. Mr.
Copeland did not appeal the RO’s decision and it became final.
In October 2010, Mr. Copeland filed a claim for benefits for, inter alia, SMC for loss of
use of the right upper extremity. R. at 229. In July 2011, the RO granted entitlement to SMC for
loss of use of the right hand, effective October 22, 2010. R. at 170-75, 186-93. The RO relied on
a December 2010 VA examination, which is not included in the record before the Court, that
“indicat[ed] that [Mr. Copeland] had limited use of [his] right arm with loss of use of [his] right
elbow,” R. at 190. Mr. Copeland did not appeal this rating decision and it became final.
In March 2012, Mr. Copeland underwent a VA examination for his hip. R. at 151-53. He
reported that he had had no range of motion in the right elbow since 1968 and that it “is fixed at
50 degrees. [I] can supinate and pronate but [I] cannot flex or extend it such that [I have] difficulty
with the right upper extremity due to that problem.” R. at 152.
3
In November 2013, the veteran filed a motion asserting CUE as to the effective date for
the grant of entitlement to SMC for loss of use of the right hand. R. at 96. He argued that the
November 1971 RO erred by not adjudicating his claim for SMC for loss of use of the right elbow,
filed in October 1971, and that VA failed to provide him with a VA examination. Id.
In July 2014, the RO found there was no CUE in assigning an effective date of October 22,
2010, for the grant of entitlement to SMC for loss of use of the right hand. R. at 75-82. In October
2014, Mr. Copeland filed a Notice of Disagreement, R. at 72-74; in June 2016, the RO issued a
Statement of the Case, R. at 44-61; and in July 2016, he perfected his appeal. R. at 40-41.
In October 2018, the Board issued the decision here on appeal. R. at 1-12. The Board found
that the November 1971 RO decision was the subject of the CUE allegation. R. at 8. The Board
then 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. Id. The Board
noted that Mr. Copeland did not respond to the November 1971 RO’s request for additional
information or assert entitlement to SMC for loss of use of a hand at that time. Id. The Board
further noted that failure to provide a VA examination is not a valid basis for CUE. R. at 9. Finally,
the Board found that any error on the part of the RO in November 1971 in misapplying the law to
the facts of his case amounted to a disagreement with how the RO weighed the evidence and
therefore was not an undebatable error that could constitute CUE. Id. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Copeland’s appeal is timely and the Court has jurisdiction to review the October 2018
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
When a prior final RO or Board decision contains CUE, that decision may be reversed or
revised. 38 U.S.C. §§ 5109A, 7111; see DiCarlo v. Nicholson, 20 Vet.App. 52, 54-58 (2006);
38 C.F.R. §§ 3.105 (2019), 20.1400-1411 (2019). CUE is established when the following
conditions have been met: (1) Either the correct facts as they were known at the time were not
before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or
regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is
“undebatable,” not merely a “disagreement as to how the facts were weighed or evaluated”; and
(3) the error “manifestly changed the outcome” of the prior decision. Russell v. Principi,
4
3 Vet.App. 310, 313-14, 319 (1992) (en banc); see Damrel v. Brown, 6 Vet.App. 242, 245 (1994);
see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). The Court’s review of a Board
decision finding no CUE in a prior, final RO or Board decision is limited to determining whether
the Board’s finding was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it was supported by an adequate
statement of reasons or bases, 38 U.S.C. § 7104(d)(1). See Cacciola v. Gibson, 27 Vet.App. 45,
59 (2014); Eddy v. Brown, 9 Vet.App. 52, 57 (1996).
With any finding on an issue of material fact or law, the Board is required to support its
determination with a statement of reasons or bases that enables a claimant to understand the precise
basis for its decision and facilitates review in this Court. See 38 U.S.C § 7104(d)(1); Gilbert v.
Derwinski, 1 Vet. App. 49, 56-57 (1990). To comply with that requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and address its reasons for rejecting evidence that is favorable to the claimant. See
Thompson v. Gober, 14 Vet.App. 187, 188 (2000); Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
III. ANALYSIS
A. Earlier Effective Date for SMC for Loss of Use of Right Hand
Mr. Copeland seeks an effective date earlier than October 22, 2010, for the grant of
entitlement to SMC for loss of use of his right hand, based on an allegation of CUE in the
November 1971 RO decision. Liberally construed, see De Perez v. Derwinski, 2 Vet.App. 85, 86
(1992), Mr. Copeland’s argument is that the Board erred in finding no CUE in the November 1971
RO decision because, based on the law and medical records extant at the time of the 1971 decision,
the RO reasonably should have considered his request for SMC for loss of use of his right elbow
as a claim for loss of use of his right hand. Appellant’s Informal Brief (Br.) at 3-5.
The Secretary counters that the Board correctly found no CUE in the November 1971 RO
decision because the RO in 1971 properly determined that entitlement to SMC for loss of use of
the right elbow was not available under the governing regulations in existence in 1971. Secretary’s
Br. at 9. He further argues that the medical evidence extant at the time of the November 1971
decision does not undebatably establish that Mr. Copeland had lost the use of his right hand and
was therefore clearly and unmistakably entitled to SMC for loss of use of the right hand beginning
5
in November 1971. Id. at 10-13. Finally, he asserts that Mr. Copeland’s October 1971 claim for
SMC for “loss of use of the right elbow” was not an informal claim for SMC for loss of use of the
right hand and that the RO in 1971 thus was not required to adjudicate a claim for loss of use of a
hand. Id. at 9-10.
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. See id.
In this case, the Court concludes that the Board’s reasons or bases for its decision are
inadequate. The Board found that, even if the RO in 1971 erred in failing to construe the October
1970 claim as one for loss of use of a hand, Mr. Copeland had failed to show that any such error
was undebatable because his “argument is no more than a . . . difference of opinion with how the
evidence was weighed in November 1971.” R. at 9. Thus, the Board seems to concede that the RO
in 1971 erred by failing to consider Mr. Copeland’s claim as one for SMC for loss of use of the
right hand. However, the Board gave an inadequate explanation as to why the alleged error was
not undebatable, because it did not account for evidence of record at the time of the 1971 RO
decision demonstrating loss of use of the right hand. See R. at 909-10 (February 1970 treatment
record that veteran was “unable to bring [right] hand to his mouth for feeding due to lack of flexion
of [right] elbow”), 1074 (November 1968 Medical Board examiner noting that veteran’s “right
elbow is permanently flexed at approximately 45 degrees” and diagnosing flexion contracture,
partial right elbow). Instead, the Board merely stated that “the record did not explicitly show []
that [Mr. Copeland] had loss of use of the right hand due to the elbow disability” and that, thus,
any error on the part of the RO was not undebatable. R. at 8, 9; see Russell, 3 Vet.App. at 313-14,
319; Damrel, 6 Vet.App. at 245; see also Bustos, 179 F.3d at 1380-81.
The Board’s failure to account for this evidence is particularly significant given that
(1) VA’s definition of “loss of use of hand” has remained the same since 1971, compare § 4.63
(1970) with §§ 3.350(a)(2)(i)(2019), 4.63(a) (2019); and (2) the July 2011 RO decision granted
6
SMC for loss of use of the hand based on a December 2010 VA examination (not of record before
the Court) that found that Mr. Copeland “had limited use of [his] right arm with loss of use of [his]
right elbow,” R. at 190. Thus, it appears to the Court, based upon the record before it, that the July
2011 RO found Mr. Copeland had “loss of use of a hand” when VA’s definition of such was the
same in 1971 and based upon what appears to be the same medical picture as existed in 1971–
namely, that Mr. Copeland’s right elbow is fused at 45 degrees, severely limiting his ability to use
his right hand, including the ability to use the hand for feeding. Compare R. at 190 with R. at 909-
10 and 1074.
Further, the Court finds that the Board’s failure to adequately address this matter prejudiced
Mr. Copeland because neither the Board nor the Secretary points to evidence that weighs against
a finding that Mr. Copeland met the definition of “loss of use of hand” in November 1971. See R.
at 190, 909-10, 1074; see also R. at 654 (July 1968 STR noting “hand swollen, could not turn
arm”). Additionally, because of this lack of unfavorable medical evidence at the time of the 1971
RO decision, prejudice is evident even when considering that the 1971 decision was made at a
time when ROs included medical rating specialists. Compare Cousin v. Wilkie, 905 F.3d 1316,
1321 (Fed. Cir. 2018) (finding CUE in a 1954 RO decision based on a legal error and the
Secretary’s concessions that the undisputed facts favored the veteran)
, with Hime v. McDonald,
28 Vet.App. 1, 7 (2016) (finding no CUE in a 1983 Board decision that the overall evidence was
against service connection, despite the presence of a favorable medical opinion, because a medical
rating specialist on the Board had the medical expertise to assess the medical evidence, and the
Board was under no obligation to provide an explanation for its rejection of favorable evidence).
Remand is thus appropriate for the Board to explain how the RO’s error in November 1971
in failing to adjudicate Mr. Copeland’s claim as one for SMC for loss of use of a hand was not
undebatable error, but was instead error upon which reasonable minds could differ. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has . . . failed to provide an adequate statement of reasons or bases for its determinations”).
As to the remanded claim, the veteran remains free to present additional argument to the
Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a]
remand is meant to entail a critical examination of the justification for [the Board’s] decision,”
7
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious
manner in accordance with 38 U.S.C. § 7112.
B. Entitlement to Service Connection for Hearing Loss
In his informal brief, Mr. Copeland notes a February 8, 1970, STR that documents his
complaint of left ear discharge for over a week. Appellant’s Informal Br. at 5; see R. at 909.
However, as the Board did not adjudicate a claim for a hearing condition in its October 2018
decision, such a claim is also not before the Court, and the Court therefore lacks jurisdiction to
hear such a claim. See 38 U.S.C. § 7252. If Mr. Copeland wishes to file a claim for hearing loss,
he must do so with VA.
IV. CONCLUSION
Upon consideration of the foregoing, the October 25, 2018, Board decision is SET ASIDE
and the matter is REMANDED for additional adjudication consistent with this decision.
DATED: April 17, 2020
Copies to:
Gregory Copeland
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.