Citation Nr: 0005200 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-32 495A ) DATE ) ) THE ISSUE Whether a June 1997 Board of Veterans' Appeals decision, which denied compensation for shortening of the right leg and disability related thereto pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1996) based on treatment during hospitalization by the Department of Veterans Affairs (VA) from June to September 1990, should be revised or reversed on the grounds of clear and unmistakable error (C&UE). REPRESENTATION Moving Party Represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from June 1964 to December 1964. This matter is before the Board of Veterans' Appeals (Board) as an original action on the motion of the claimant, alleging C&UE in a Board decision dated June 24, 1997. FINDING OF FACT A legally cognizable claim of C&UE, relative to the issue adjudicated in the June 1997 Board decision, has not been asserted. CONCLUSION OF LAW The June 1997 Board decision, which denied compensation for shortening of the right leg and disability related thereto pursuant to 38 U.S.C.A. § 1151 based on treatment during hospitalization by VA from June to September 1990, did not involve C&UE. 38 U.S.C.A. § 7111 (West Supp. 1998); 64 Fed. Reg. 2138-2141 (1999) (to be codified at 38 C.F.R. §§ 20.1400-20.1411). REASONS AND BASES FOR FINDING AND CONCLUSION Effective November 21, 1997, the provisions of Pub. L. No. 105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. § 7111 (West Supp. 1998)) permit challenges to decisions of the Board on the grounds of C&UE. Final regulations amending the Rules of Practice before the Board were promulgated and became effective February 12, 1999, providing for procedures to challenge prior Board decisions on the basis of C&UE. 64 Fed. Reg. 2134-2141 (1999). It is apparent, however, that Congress, in creating § 7111, intended VA to follow the established case law defining C&UE. 64 Fed. Reg. 2134, 2137 (1999). This case law is found primarily in the precedent opinions of the United States Court of Veterans Appeals, now known as the United States Court of Appeals for Veterans Claims. C&UE is defined in Rule 1403(a) of the Rules of Practice (to be codified at 38 C.F.R. § 20.1403(a)) as "the kind of error, of fact or 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." See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Review of C&UE in a prior Board decision must be based on the record as it existed when that decision was made. 64 Fed. Reg. 2134, 2139 (1999) (to be codified at 38 C.F.R. § 20.1403(b)); see Russell v. Principi, 3 Vet. App. 310, 314 (1992). Concerning the June 1997 Board decision, which denied compensation for shortening of the right leg and disability related thereto under 38 U.S.C.A. § 1151 based on treatment during hospitalization by VA from June to September 1990, the veteran states that his right leg was not shortened prior to undergoing surgery at a VA facility in 1990. Rather, he indicates that the evidence reflects that his right leg sustained initial shortening as a direct consequence of accomplishment of the VA surgery in 1990. He contends, in substance, that in noting that his right leg was shortened prior to 1990, as opposed to having sustained shortening as a result of the VA surgery in 1990, the June 1997 Board decision misconstrued the evidence, thereby committing C&UE. While the Board respectfully acknowledges the veteran's above-cited allegation relative to C&UE involving the June 1997 Board decision, it is constrained to observe that evidence of VA origin in the mid-1980's reflects that the veteran's right leg had been fractured as a result of his involvement in a motor vehicle mishap. The report pertaining to his examination by VA in July 1987 specifically reflects that his right lower extremity, compared to the left, was "1/2 inch shorter". In June 1990, Ilizarov application involving the veteran's right leg was surgically accomplished at a VA facility. Thereafter, when he was seen for VA outpatient treatment in August 1993, the veteran's right lower extremity was specifically found to be "1/2 [inch] short". Thus, the evidence in the Board's possession in June 1997 specifically rebuts the veteran's assertion that his right leg was not shortened prior to undergoing surgery by VA in 1990. In any event, the Board would point out that an objection that the evidence was improperly weighed or evaluated does not rise to the level of C&UE. 64 Fed. Reg. 2134, 2139 (1999) (to be codified at 38 C.F.R. § 20.1403(d)); see also Damrel v. Brown, 6 Vet. App. 242, 246 (1994). In view of the foregoing, and since his above-cited contention (bearing on whether his right lower extremity was in fact free of shortening prior to 1990) is the lone error alleged by the veteran with respect to the June 1997 Board decision, the Board is constrained to conclude that a legally cognizable claim of C&UE, relative to such decision, has not been asserted. Accordingly, no basis for the revision or reversal of the Board's June 1997 denial of compensation for shortening of the right leg and disability related thereto under 38 U.S.C.A. § 1151 based on treatment during hospitalization by VA from June to September 1990 has been presented. Related revision or reversal is, accordingly, denied. ORDER Revision or reversal of a June 1997 Board decision, which denied compensation for shortening of the right leg and disability related thereto pursuant to 38 U.S.C.A. § 1151 based on treatment during hospitalization by VA from June to September 1990, based on C&UE, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals