Citation Nr: 0007322 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-17 813A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether the veteran perfected his appeal of a September 1981 rating decision. 2. Entitlement to a disability rating greater than 10 percent for a fragmentation wound to the right heel on the basis of clear and unmistakable error in October 1945, December 1948, or September 1981 rating decisions. REPRESENTATION Appellant represented by: James W. Deremo, Registered Agent ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1941 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The veteran submitted a notice of disagreement with the September 1981 rating decision later in September 1981. In addition, he submitted additional correspondence in November 1981. In December 1981, the RO furnished the veteran a statement of the case, which included an advisory as to the need to submit a timely substantive appeal. 2. The claims folder does not contain a completed VA Form 9 or other correspondence that may be accepted as a substantive appeal within one year of the notification of the September 1981 rating decision. 3. The RO awarded service connection for a gunshot wound to the lateral border of the right tendo-achilles tendon in October 1945 and assigned a 10 percent disability rating. The disability rating was continued in rating decisions issued in December 1948 and September 1981. With each rating decision, the RO notified the veteran of the decision, but he failed to initiate or perfect an appeal. 4. The veteran has failed to raise a valid claim of clear and unmistakable error in rating decisions issues in October 1945, December 1948, or September 1981. CONCLUSIONS OF LAW 1. The appeal of the September 1981 rating decision was not timely perfected. 38 U.S.C. § 4005 (1976); 38 C.F.R. §§ 19.112, 19.116, 19.118, 19.119, 19.121 (1981). 2. The veteran's claim of clear and unmistakable error in the unappealed October 1945, December 1948, or September 1981 rating decisions, in which the RO assigned a 10 percent disability rating for a gunshot wound to the lateral aspect of the right tendo-achilles tendon, is legally insufficient. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.105, 20.200, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Appeal of the September 1981 Rating Decision A review of the claims folder reveals a September 1981 rating decision in which the RO continued the 10 percent disability evaluation for the service-connected gunshot wound. The veteran submitted a notice of disagreement with that decision in September 1981. In addition, the veteran submitted additional correspondence in November 1981. In December 1981, the RO furnished the veteran a statement of the case, which included an advisory as to the need to submit a timely substantive appeal. The claims folder does not contain a completed VA Form 9 or other correspondence that may be accepted as a substantive appeal within one year of the notification of the September 1981 rating decision. The law in effect at the time of the September 1981 rating decision provides that appellate review is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C. § 4005(a) (1971); 38 C.F.R. § 19.112 (1981). A substantive appeal consists of a VA Form 9 or equivalent correspondence. 38 C.F.R. § 19.116. A substantive appeal must be filed within 60 days from the date of mailing of the statement of the case, or within one year from the date of notification of the determination at issue, whichever is later. 38 U.S.C. § 4005(d)(3); 38 C.F.R. § 19.118(b). The agency of original jurisdiction may close the case without notice to the claimant for failure to respond to the statement of the case. 38 U.S.C. § 4005(d)(3); 38 C.F.R. § 19.121(a). However, questions as to adequacy or timeliness of a response shall be determined by the Board. 38 U.S.C. § 4005(d)(3); 38 C.F.R. § 19.119. In this case, there was no substantive appeal filed after the RO issued the statement of the case. Contrary to the veteran's assertions, the law and regulation in effect at that time, which is nearly identical to the current law and regulation, precisely specify that an appeal is completed when a substantive appeal is submitted after the statement of the case is issued. 38 U.S.C. § 4005(a); 38 C.F.R. § 19.112. See Fenderson v. West, 12 Vet. App. 119, 129-30 (1999) (holding that a statement submitted after the veteran provided his notice of disagreement but before the RO issued a statement of the case did not constitute a substantive appeal). Therefore, the veteran's November 1981 correspondence cannot constitute a substantive appeal because the RO did not issue a statement of the case until December 1981. Accordingly, the veteran did not file a substantive appeal at all with respect to the September 1981 rating decision. Because the appeal was not perfected, the Board does not have jurisdiction over the claim. 38 U.S.C. § 4005(a); 38 C.F.R. § 19.112; Fenderson, 12 Vet. App. at 131. Clear and Unmistakable Error A rating decision becomes final if the veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1999). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). If clear and unmistakable error is established, the prior decision will be reversed and amended. Id. Clear and unmistakable error is 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), en banc review denied, Fugo v. Brown, 6 Vet. App. 162 (1994). Clear and unmistakable error in a prior adjudication exists when (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;" (2) the error is 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) it is determined that the error was based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). To assert a valid claim of clear and unmistakable error, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated; he must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. The mere assertion of clear and unmistakable error is not sufficient to reasonably raise the issue. Fugo, 6 Vet. App. at 44; Russell, 3 Vet. App. at 313. In this case, the RO awarded service connection for a gunshot wound to the lateral border of the right tendo-achilles tendon in an October 1945 rating decision, immediately following the veteran's separation from service. It assigned a 10 percent disability rating at that time. In a December 1948 rating decision, the RO continued the 10 percent rating for the gunshot wound already in effect. Finally, the RO continued the 10 percent rating in a September 1981 decision. In each case, the RO notified the veteran of the decision, but the veteran failed to initiate or perfect an appeal. In a January 1998 statement, the veteran claims that the RO committed clear and unmistakable error in failing to award a disability rating greater than 10 percent for the right foot disability. The statement includes a recitation of facts in evidence, namely service medical records, the VA examination report of November 1948, and an X-ray report dated in 1981. The statement then quotes the provisions of 38 C.F.R. § 4.56(3) (1999), which sets forth the requirements for moderately severe disability from muscle injury. Finally, the veteran asserts that, based on the evidence of record, he was entitled to a 20 percent disability rating effective from his separation from service. The Board finds that the veteran has failed to raise a valid claim of clear and unmistakable error in this case. Although the Board assumes that the veteran challenges each of the three rating decisions described above, the veteran failed to specifically identify any rating decision in which clear and unmistakable error was made. Moreover, the veteran does not raise with any specificity the alleged error of fact or law. For example, he does not suggest that the facts before the RO were incorrect or that the RO applied the incorrect regulations. In fact, the only argument raised by the January 1998 statement is that the RO improperly decided that the evidence did not warrant a disability rating greater than 10 percent. Thus, the essence of this argument is that the RO failed to properly weigh the evidence of record in October 1945, December 1948, and September 1981. However, it is established that a successful claim of clear and unmistakable error requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Fugo, 6 Vet. App. at 44; Russell, 3 Vet. App. at 313. The Board finds that this argument is insufficient to raise a claim of clear and unmistakable error. Shockley v. West, 11 Vet. App. 208, 213-14 (1998). Therefore, the claim for a rating greater than 10 percent for a fragmentation wound to the right heel on the basis of clear and unmistakable error in the October 1945, December 1948, or September 1981 rating decisions, is denied. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105(e); 20.200, 20.302. ORDER The veteran did not perfect his appeal of the September 1981 rating decision. Entitlement to a disability rating greater than 10 percent for a fragmentation wound to the right heel on the basis of clear and unmistakable error in the October 1945, December 1948, or September 1981 rating decisions, is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals