Citation Nr: 0002871	
Decision Date: 02/04/00    Archive Date: 02/10/00

DOCKET NO.  98-05 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Whether a May 3, 1955, rating decision involved clear and 
unmistakable error in the assignment of a 10 percent 
disability evaluation for the veteran's service-connected 
loss of one-half of masticatory surface, residual of 
fractured mandible. 


ATTORNEY FOR THE BOARD

K. J. Loring, Counsel


INTRODUCTION

The veteran had active military service from August 1944 to 
October 1946.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 1997 rating decision by the 
Buffalo, New York, Regional Office (RO) of the Department of 
Veteran's Affairs (VA).  A notice of disagreement was 
received in December 1997, a statement of the case was issued 
in January 1998, and a substantive appeal was received in 
February 1998. 

The veteran's initial claim essentially involved his belief 
that the May 3, 1955, rating decision's assignment of a 10 
percent rating was clearly and unmistakably erroneous.  The 
RO's October 1997 rating decision and January 1998 statement 
of the case addressed this aspect of the May 1955 rating 
decision.  However, in his substantive appeal, the veteran 
added a contention that the May 1955 rating decision was also 
clearly and unmistakably in error in the assignment of the 
effective date for the initial grant of service connection 
for loss of one-half of masticatory surface, residual of 
fractured mandible.  Although the same rating decision is 
involved, the effective date matter has not yet been 
addressed by the RO.  Accordingly, the Board hereby refers to 
the RO the new issue of whether the May 3, 1955, rating 
decision involved clear and unmistakable error in the 
assignment of the effective date for the grant of service 
connection for loss of one-half of masticatory surface, 
residual of fractured mandible.


FINDINGS OF FACT

1.  In March 1945, the veteran sustained a severe, 
perforating gunshot wound to the face with resulting fracture 
of the mandible.

2.  By rating decision dated May 3, 1955, the Syracuse, New 
York, Regional Office established service connection for loss 
of one-half of masticatory surface, residual of fractured 
mandible, and assigned a 10 percent evaluation under 
Diagnostic Code 9913.

3.  At the time of the May 3, 1955, rating decision, medical 
evidence of record showed that all lower teeth were missing, 
that there was loss of alveolar bone due to the path of the 
bullet, and that complete functional prosthesis could not be 
restored. 


CONCLUSION OF LAW

The May 3, 1955 rating decision, was clearly and unmistakably 
erroneous in assigning a 10 percent evaluation instead of a 
30 percent evaluation for the veteran's service-connected 
loss of one-half of masticatory surface, residual of 
fractured mandible..  38 C.F.R. § 3.105(a) (1999); 38 C.F.R. 
Diagnostic Code 9913 (as in effect on May 3, 1955).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran filed a claim for an increased rating for 
residuals of a fractured mandible in June 1996.  A January 
1997 rating decision increased the veteran's rating to 30 
percent, effective November 10, 1993.  The veteran then 
claimed that the 30 percent rating should have been in effect 
much earlier than November 1993.  He specifically asserted 
that clear and unmistakable error was involved in a May 3, 
1955, rating decision, which assigned only a 10 percent 
rating for residuals of a fractured mandible with loss of 
one-half masticatory surface.  An October 1997 RO decision, 
which is the subject of this appeal, found no clear and 
unmistakable error, and the present appeal ensued.

The veteran did not appeal from the May 3, 1955, rating 
decision in question, and that decision became final.  38 
U.S.C.A. § 7105(c).  Applicable regulations provide that 
previous determinations which are final and binding will be 
accepted as correct in the absence of clear and unmistakable 
error (CUE).  38 C.F.R. § 3.105(a).

The United States Court of Appeals for Veterans Claims 
(formerly known as the United States Court of Veterans 
Appeals, and referred to hereinafter as the 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 (that is, 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.  
See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), (quoting 
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en 
banc)).

The Court has also stated that it must be remembered that CUE 
is a very specific and rare kind of "error."  "It is the kind 
of error, of fact or of law, 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.  Thus even where 
the premise of error is accepted, if it is not absolutely 
clear that a different result would have ensued, the error 
complained of cannot be, ipso facto, clear and unmistakable."  
Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) citing Russell, 3 
Vet. App. at 313.  

At the time of the May 1955 rating decision, the Syracuse 
Regional Office had before it service medical records and 
post-service medical records, including the report of a 
February 1955 VA dental examination.  

Service medical records reveal that the veteran sustained a 
severe, perforating gunshot wound to the floor of his mouth 
in March 1945, with a compound, comminuted fracture of the 
mandible in the bicuspid region and fractures of teeth number 
10, 11, and 12 on the right side and 12, 13, on the left 
side.  The records reflect that the point of entry was on the 
right side of the face near the lower border of the mandible 
just anterior to the mental region; the point of exit was 
through the mandible on the left side of the face in the 
region of the bicuspid teeth.  The wound was debrided, the 
veteran's jaws were wired.  A June 1945 clinical note 
indicated that all of the teeth in the veteran's lower jaw 
would need to be extracted once there was firm union of the 
mandible fracture.  In July 1945, the remaining teeth were 
extracted and the veteran was fitted for a denture.  He was 
separated from service in October 1946.

The February 1955 VA dental examination showed that the 
veteran was having difficulty in handling his lower denture 
because of loss of substance to the body of the mandible on 
the left and right.  Specifically loss of alveolar bone was 
reported in the region of the bicuspid teeth in the right and 
left sides of the mandible where the bullet made its entrance 
and exit.  Radiographic examination showed a healed fracture 
of the right mandible at a point between the first and second 
bicuspid.  The diagnosis included loss of substance of body 
of mandible in right and left bicuspid areas where complete 
functional prosthesis cannot be restored.  

The May 1955 rating decision granted service connection for 
residuals of a fractured mandible, effective February 15, 
1955, the date of the VA examination.  A 10 percent rating 
was assigned pursuant to the Schedule for Rating Disabilities 
as in effect in 1955 applicable to dental and oral 
conditions.  According to Diagnostic Code 9913, a 10 percent 
rating was warranted for loss of one-half masticatory surface 
with the median line being the point of division, or for loss 
of one-half masticatory function with all lower anterior 
teeth missing or all upper anterior teeth missing.  A 20 
percent rating was warranted for loss of one-half masticatory 
surface with all upper and lower anterior teeth missing or 
all missing teeth being posterior.  A 30 percent rating was 
indicated for lost masticatory surface that could not be 
restored by suitable prosthesis when involving loss of all 
lower teeth only, or loss of all upper teeth only; a maximum 
40 percent rating was indicated for loss of all teeth.  

After reviewing the evidence of record in May 1955, the Board 
notes that medical records from the 1940's after the combat 
injury do show that the veteran was fitted for a lower 
denture.  However, they also show that all lower teeth were 
removed, and the clear context of such medical records 
indicates that it was the bullet wound to the jaw which was 
the reason for such removal of all teeth.  Further, it is 
clear from the medical evidence that the injury resulted in a 
loss of bone in the mandible which caused difficulty with the 
denture.  Significantly, the examiner who conducted the 
February 1955 dental examination concluded that complete 
functional prosthesis could not be restored.  

In sum, the Board finds that the evidence of record at the 
time of the May 1955 rating decision showed loss of all lower 
teeth due to the bullet injury which involved loss of 
substance of the body of the mandible.  The evidence also 
clearly showed that the lost masticatory surface could not be 
restored by suitable prosthesis.  Under Diagnostic Code 9913, 
a 30 percent rating was therefore warranted. 

Given the evidence of record in May 1955, the Board concludes 
that regulatory provisions regarding rating criteria extant 
at that time were incorrectly applied and that such error, 
had it not been made, would have manifestly changed the 
rating assigned for the disability at issue.  In other words, 
the assignment of a 10 percent evaluation by the May 3, 1955, 
rating decision involved clear and unmistakable error.  The 
proper evaluation which should have been assigned was 30 
percent. 


ORDER

The May 3, 1955, rating decision was clearly and unmistakably 
erroneous to the extent that it assigned a 10 percent 
evaluation instead of a 30 percent evaluation for the 
veteran's service-connected loss of one-half of masticatory 
surface, residual of fractured mandible.  To this extent, the 
appeal is granted. 



		
	ALAN S. PEEVY 
	Member, Board of Veterans' Appeals