Citation Nr: 0001933 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-32 548A ) DATE ) ) THE ISSUE Whether an April 1958 decision of the Board of Veterans' Appeals denying service connection for a right wrist disability should be revised or reversed on the grounds of clear and unmistakable error. (The issue of whether a timely notice of disagreement was filed with regard to a claim for entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability, Docket Number 92-11 027, is the subject of a separate decision). REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from September 1953 to September 1956. This matter comes before the Board of Veterans' Appeals (the Board) as a result of an Order of the United States Court of Appeals for Veterans Claims (the Court) issued in February 1999. In that Order, the Court vacated a decision of the Board dated September 19, 1997, and remanded for, inter alia, adjudication by the Board of a motion alleging clear and unmistakable error in an April 1958 decision under 38 U.S.C. § 7111 and regulations presented thereunder. FINDING OF FACT The Board's April 1958 decision denying entitlement to service connection for a right wrist disability was supported by the evidence then of record, and was consistent with the applicable law and regulations extant in 1958. CONCLUSION OF LAW The Board's April 1958 decision was not clearly and unmistakably erroneous for failing to grant service connection for a right wrist disability. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. § 20.1403(a) & (d) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Background The Board's decision of April 1958 denied entitlement to service connection for a right wrist disability on the basis that a pre-existing disorder of the right wrist was aggravated during service. Evidence reviewed by the Board at that time included the veteran's service medical records; the reports of VA compensation examinations conducted in November 1956 and June 1957; the statement of J. E. Snyder, M.D., dated November 21, 1957; and, the transcript of the veteran's personal hearing held on November 6, 1957. The above-cited service medical records disclosed that the veteran reported on his enlistment examination of August 1953 a pre-service history of having a bone chip removed from his right elbow in 1948. It was noted at the time of the enlistment examination that he had some limitation of extension (10 degrees) of the right arm, which was not considered disabling. During service, clinical records disclosed sick call treatment in September 1954 for a possible fracture of the right hand; x-rays were reported as negative, however, and the only treatment provided was hot soaks. The veteran was seen again for follow-up treatment in November 1954 at which time he complained of a swollen right hand; x-rays were taken again, but were apparently not read as there is no accompanying report. Parenthetically, the Board observes that with respect to this injury, the record before the Board in April 1958 included the veteran's November 1957 hearing testimony in which he stated that he injured his right hand in Japan while on liberty; specifically, he testified that he was assaulted and knocked down whereupon someone stepped on his hand during the melee. He further testified that his right hand was placed in a cast, but that he had no other injury to his right arm in service. Thereafter, additional service medical records disclosed that while being treated in March 1955 for a right knee disorder, the veteran reported a medical history significant for the pre-service right elbow surgery, for which he indicated that he could not presently extend his right elbow completely and had some stiffness in the elbow, although he had no pain, and a history of an inability to extend completely his right little finger due to a depressed fracture of the neck of the right metacarpal bone, although he reported no soreness or real difficulty with the finger at that time. Notwithstanding the above, no service medical records disclosed actual treatment for the right wrist until March 1956 at which time the veteran was hospitalized for surgical excision of the distal one inch of the right ulna based on a finding that he had an incomplete dislocation of the right radial ulnar joint. At that time, it was reported that the veteran had a pre-service history of bone chip removal surgery on the right elbow with a history since that surgery of gradual development of weakness of the wrist, radial deviation of the hand, with increased prominence of the styloid process of the ulna with pain on exertion across the dorsum of the wrist and along the medial aspect of the right forearm. Following the surgery, clinical records dated in May 1956 showed gradual improvement in his grip strength in the right hand (noted on May 23rd to have improved to 65 pounds with 75 degrees of supination, 80 degrees of pronation and with normal ulnar and radial deviation of the wrist). He was discharged on June 1, 1956, as fit for duty with no reported increase in grip strength and unchanged range of motion compared to the findings reported on May 23, 1956. No further residuals or complaints regarding the right wrist were reported or identified for the balance of his service, including on his discharge examination conducted in September 1956. The report of the November 1956 VA compensation examination disclosed that the veteran had only a two inch linear scar over the ulnar aspect of the right wrist. The scar was not tender, and the wrist was freely movable with no evidence of muscle loss, visible deformity, limited range of motion, or diminished wrist or hand strength. The examiner stated that there was, "[n]o impairment of function of wrist." X-rays taken at the time of this examination showed resection of the distal third of the ulna, with the residual stump showing no surrounding bony reaction except for a bone spur. The surrounding soft tissue appeared normal on x-rays. When he was examined by VA in June 1957, the veteran reported that his wrist was getting worse, but clinically, there was no evidence of limitation of dorsiflexion or palmar flexion, abnormal deformity, ulnar or radial deviation, or less than "good" grip strength. It was noted, however, that when the veteran fixed his hand and forcibly pronated the wrist, the distal end of the ulna became prominent. Repeat x-rays of the right wrist showed no changes compared to the previous study taken in November 1956. The November 1957 statement of Dr. Snyder, the Assistant Vice President of Medical Information at the Columbia-Presbyterian Medical Center, disclosed that the veteran had been an inpatient at the aforementioned facility in 1948 at which time he had injured his right elbow in a fall that occurred approximately six months previous to his admission. Dr. Snyder reported that x-rays taken at that time showed closure of the right radial head epiphysis which probably indicated an old injury. Based on these results, it was felt that he had osteochondritis of the right elbow joint and probably a loose body. Accordingly, he underwent surgery in 1948 to have the right head removed as well as the loose body. He did well post operatively and when seen in May 1953, it was noted that he lacked 10 degrees of full extension and 25 degrees of supination. Dr. Snyder further reported that the veteran was last seen at their facility in October 1956 (one month after service discharge), at which time he reported pain in his right elbow and a decrease in supination and pronation since undergoing an operation in March 1956 for removal of the distal end of his right ulna. Clinical examination in October 1956 disclosed some range of motion deficits in the right elbow and a one centimeter shortening of the right forearm. X-rays showed some regeneration of the bone in the region of the neck of the right radius with considerable joint space narrowing between the neck and the capitellum. Dr. Snyder concluded by saying that the veteran was thereafter recommended to follow a conservative therapy, but that he had not been seen since at the Columbia- Presbyterian Medical Center. At his hearing in November 1957, the veteran asserted that service connection was in order for the right wrist on the basis of aggravation, contending that because of the strenuous nature of his duties performed in the Marine Corps, his pre-existing right elbow disorder was aggravated to such an extent that it eventually manifested itself in the form of dislocation of the right wrist. He denied having any acute- type injury to his right wrist during service, testifying that he played basketball and performed duties as a wireman which required pole climbing during service without difficulty until he needed the operation in March 1956. In reviewing the evidence then of record, as detailed above, the Board in its April 1958 decision set forth the following reasons and bases in support of its denial of the claim: The evidence establishes that a wrist disability existed prior to service. In this regard there is no disagreement, the veteran basing his appeal on the contention that residuals of the pre- service injury were aggravated during service. The symptoms in service were a manifestation of the preservice wrist condition and the operative procedure was ameliorative in nature. Superimposed injury is not shown and increase in the basic preexisting level of disablement is not demonstrated. The evidence does not establish that the wrist condition was aggravated by service. The veteran alleges that the Board's 1958 decision was clearly and unmistakably erroneous on the grounds that it was wrongfully denied, "apparently based on the initial uninformed decision that this [the right wrist disorder] was a pre-existing condition, which quite obviously it was not." See Substantive Appeal, VA Form 9, dated August 5, 1996. He further alleged that had it been a pre-existing condition, he surely would not have qualified for enlistment in the Marine Corps or been able to perform the many strenuous duties therein for two and a half years. He added that the ulna excision procedure was wrongful and clearly unnecessary, and in support of this assertion he stated the following: It took until 1989 to find a doctor that would put pen to paper (after seeing the records) that my condition is a direct result of the aforementioned operation. The V.A. has granted service connection and accepted responsibility for my condition, but only back to 1989 when I finally proved my point. Service connection should have been recognized during examination of my first claim in 1956, so I feel that since the mistake was made by the V.A. in 1956 and finally recognized in 1989 and service connection granted, that a statute of limitation should not apply and disability compensation should be retroactive to 1956 instead of only to 1989. The above-cited doctor to whom the veteran referred was Dr. J. M. Harris, M.D., Chief, Orthopedic Section, at the Boston- VA Medical Center. In connection with the veteran's claim to reopen filed in 1989, Dr. Harris submitted statements in support of the claim in August 1989 and September and October 1990. Based on these statements, a regional office hearing officer reopened the claim and granted service connection for the right wrist disability by decision in April 1991. A rating decision issued in August 1991 implemented the grant of service connection, assigning a 10 percent rating for the disability effective from August 1, 1989, the date of Dr. Harris' first statement which was considered the date of the reopened claim. Dr. Harris' statement dated in September 1990 clarified that he had made his August 1, 1989 statement in good faith regarding his opinion that the veteran's present instability in the right wrist was due directly to the surgical excision operation performed on the wrist during service. Dr. Harris further explained the following concerning the underlying basis for his opinion: I believe that my statement was made not only in good faith, but also on the basis of the present state of Orthopedic knowledge with relation to the results of resection of the proximal end of the radius and the distal end of the ulnar. It is very clear from a review of the present literature on the topic that this set of procedures will produce instability in the longitudinal axis of the forearm such that the forearm collapses backwards and shortens, but can be stretched somewhat towards it[s] full length if pulled longitudinally. This is a condition which [the veteran] very obviously demonstrates. Unfortunately, people who have this situation end up with an unstable wrist which is reduced in strength because it lacks a firm base for strong motions, particularly if they are rotary. Dr. Harris added that, "[a]t the time at which the procedure, the removal of the distal ulnar was performed during [the veteran's] military service[,] the procedure was felt appropriate for the problem which he described." Dr. Harris' follow-up statement dated in October 1990 indicated that his opinions cited above were not altered following his review of the veteran's service medical records. Analysis A Board decision is subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a) (West Supp. 1999). Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on its own motion, or upon request of a claimant at any time after the decision is made. 38 U.S.C.A. § 7111(c) and (d). A request for revision is to be submitted directly to the Board and decided by the Board on the merits, 38 U.S.C.A. § 7111(e), and a claim filed with the Secretary requesting such reversal or revision is to be considered a request to the Board, 38 U.S.C.A. § 7111(f). Motions for review of Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to regulations published by VA in January 1999. 38 C.F.R. §§ 20.1400-1411 (1999). According to the regulations, clear and unmistakable error 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. 38 C.F.R. § 20.1403(a). Generally, clear and unmistakable error is present when either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were ignored or incorrectly applied. Id. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b). The regulations cited above further provide that to warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made; if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). Examples of situations that are not clear and unmistakable include the following: (1) Changed diagnosis. A new diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) Duty to assist. The Secretary's failure to fulfill the duty to assist under 38 U.S.C.A. § 5107(a); and, (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). In addition to the above, a motion for clear and unmistakable error in a Board decision must satisfy specific pleading requirements, and if it does not, the motion must be denied. 38 C.F.R. § 20.1404(b). Non-specific allegations of failure to follow regulations, failure to give due process, and other general, non-specific allegations of error are examples of allegations that will not meet the pleading requirements necessary to file a motion for clear and unmistakable error in a Board decision. Id. It should be noted that the above-cited regulatory authority was published with the specific intent to codify the current requirements for a viable claim of clear and unmistakable error that the Court has defined for claims of clear and unmistakable error in rating decisions. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 (1997). Initially, as alluded to above, the Board notes that service connection for the veteran's right wrist disability (status post residuals of distal right ulna with instability) was granted by rating decision in August 1991 and assigned a 10 percent disability rating effective from August 1, 1989. Hence, the clear and unmistakable error motion challenging the Board's denial of service connection for this disability in the April 1958 decision is, in effect, a motion seeking reversal of the Board's decision for purposes of entitlement to an earlier effective date for the grant of service connection under 38 C.F.R. § 20.1406(a) (1999). In addressing the underlying merits of the appellant's claim, the Board concludes that application of the law to the facts in this case is against a finding that clear and unmistakable error was committed by the Board in its April 1958 decision. In this case, it is clear that the correct facts, as reflected by the service medical records, the 1956 and 1957 VA examination reports, and Dr. Snyder's statement of November 1957 and the hearing transcript of November 1957, were before the Board at the time it rendered the April 1958 decision. It is not claimed by the veteran or shown by the evidence that the factual record before the Board in April 1958 was either incomplete or incorrect. Cf. Caffrey, 6 Vet. App. 377, 384 (1994). Hence, although not alleged, the appellant's claim of clear and unmistakable error in the Board's April 1958 decision is not sustainable on grounds that the correct facts, as known at that time, were not before the Board. In view of the foregoing, and after reviewing the veteran's contentions, it appears to the Board that his allegations of clear and unmistakable error in the April 1958 decision are based essentially on a disagreement as to how the facts were then weighed or evaluated, which as indicated above, cannot form the basis of a valid claim of clear and unmistakable error. As fully detailed above in the Background, the evidence before the Board in 1958 consisted of the service medical records which showed a pre-existing service history of right elbow surgery in 1948, noted on the enlistment examination, and hospital records dated in March-June 1956 which described an incomplete dislocation of the right radial ulnar joint and a history reported by the veteran of a gradual development of weakness of the wrist and hand, with increased prominence of the styloid process of the ulna with pain on exertion across the dorsum of the wrist and along the medial aspect of the right forearm, since the 1948 right elbow surgery. As a result, surgery was performed in service to remove the distal one inch of the right ulna. Following the surgery, clinical records dated in May-June 1956 indicated that his grip strength in the right hand improved and no further residuals or complaints regarding the right wrist were reported or identified for the balance of his service, including on his discharge examination conducted in September 1956. Following service, the veteran was seen in October 1956 at the Columbia-Presbyterian facility, as noted by Dr. Snyder, at which time he had some range of motion deficits in the right elbow with a one centimeter shortening of the right forearm and x-ray evidence showing some regeneration of the bone in the region of the neck of the right radius. However, no further treatment at Columbia- Presbyterian was evidently sought by the veteran and no significantly disabling residuals of the in-service right wrist surgery were clinically identified on the November 1956 VA compensation examination. Similar findings were reported on the VA examination in June 1957 (although the veteran reported that his wrist was getting worse, there was no evidence of limitation of dorsiflexion or palmar flexion, abnormal deformity, ulnar or radial deviation, or less than "good" grip strength). Hence, there appears a plausible basis for the Board's decision in April 1958 to conclude that the evidence showed a pre-existing service disorder of the right wrist with no evidence of aggravation therein under the law and regulations governing entitlement to service connection, (now codified under 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306, but substantively unchanged compared to the equivalent provisions in effect in 1958). As detailed above, the veteran was hospitalized for the right wrist problem in March 1956 at which time he reported a history of gradual weakness in that wrist since the 1948 right elbow surgery. Surgery was performed on the right wrist and from the evidence before the Board in 1958, it appears that the surgery ameliorated the condition to the extent that he had improved function in the wrist with no significantly disabling impairment seen at service discharge or in the immediate post-service period. Thus, the Board's decision to deny service connection in April 1958 on the grounds that a right wrist disability was not shown to have been aggravated in service appears plausible. Simply stated, there is nothing more to the veteran's arguments than a disagreement as to what his reported complaints and clinical findings demonstrated in service, which as per the law, is not a valid claim of clear and unmistakable error. 38 C.F.R. § 20.1403(d)(3) (1999); see also Crippen, 9 Vet. App. at 421. Further, and notwithstanding the veteran's contentions, the Board observes that the precedent decisions of the Court cited above make clear that post hoc interpretations of how certain facts were evaluated in a prior final decision, including medical determinations made after the fact, cannot form a basis for a valid claim of clear and unmistakable error. Moreover, the regulations governing clear and unmistakable error in Board decisions specifically prohibits finding error on such grounds. See 38 C.F.R. § 20.1403(d) (1) (a new medical diagnosis that "corrects" an earlier decision considered in a Board decision is not indicative of clear and unmistakable error in that decision). With respect to the above, the veteran has strongly emphasized that he did not have a pre-existing disorder of the right wrist and that the surgery performed on his right wrist in service was unnecessary or done in error, proving direct incurrence of the disability during service. In support of these assertions, the veteran has cited to the statements made by Dr. Harris in 1989 and 1990, as detailed above. However, the Board must again point to the evidence that was before it in April 1958 which detailed a medical history significant for problems with the right wrist existing prior to service following the 1948 elbow surgery. As there was nothing of record before the Board in April 1958 to contraindicate this medical history, it was plausible for the Board to find a pre-existing disorder of the right wrist. With regard to the latter argument, unnecessary or medically unsound surgery performed in service resulting in disability, it appears that Dr. Harris' statements of 1989 and 1990 denigrate rather than support the veteran's contentions of clear and unmistakable error in the April 1958 Board decision. A careful read of these statements makes clear that Dr. Harris felt that the procedure performed on the veteran's right wrist in service was appropriate at that time and that only the advances of orthopedic knowledge over the course of many years thereafter established that the procedure was not effective over the long term. These advances in medical science were not known when the Board issued its decision in April 1958. Further, the negative long-term effects of this type of surgery mentioned by Dr. Harris were clearly not evident when the Board decided the claim in 1958. As stated above, it the medical evidence before the Board at that time showed that the veteran benefited from the excision surgery. Moreover, it is not shown by the evidence before the Board in 1958 that the excision surgery was medically unsound when performed in May 1956; as stated by Dr. Harris, this type of surgery was appropriate for its time given the state of medical knowledge. Further, there were no obvious references shown by the record before the Board in April 1958 to indicate that the surgery was unnecessary. As detailed above, his condition was noted to be improved shortly after the surgery and no functionally disabling residuals were found in the immediate post service period. Dr. Harris's statements clearly relate the veteran's current disability in the right wrist to the long-term negative impact of the surgery performed in service. In this manner, therefore, the plausibility of Board's findings made in April 1958 that the right wrist disability was not aggravated in service, given the ameliorative effects shown therein as a result of the excision surgery, actually appears to be retrospectively enhanced by the statements made by Dr. Harris in 1989 and 1990. Moreover, as it is not claimed or shown that the veteran is himself competent to render a medical diagnosis or opinion, see Espiritu v. Derwinski, 1 Vet. App. 492 (1992), his contentions and hearing testimony of record which are relevant to this motion regarding what the medical findings demonstrated in service are no more than lay speculation as to how the Board weighed or evaluated the facts before it in April 1958. Accordingly, as the evidentiary record before the Board in 1958 did not reflect in-service aggravation of the right wrist disability, the Board cannot now find that it committed an "undeniable" error of fact at that time. The veteran's claim is also not sustainable on the grounds that the Board failed to apply the relevant law and regulations extant in April 1958. As stated above, the law and regulations in effect at that time pertinent to this issue are substantively unchanged from those currently in effect. Then, as now, statutory provisions regarding basic entitlement to service-connected disability compensation are codified under title 38, United States Code, and the aforementioned regulations are codified under title 38, Code of Federal Regulations. Hence, there is no evidence that the Board ignored or misapplied relevant law and regulations in effect in 1958. Accordingly, for the reasons and bases set forth above, the Board concludes that the Board's April 1958 decision is not subject to reversal on the grounds that it was clearly and unmistakably erroneous under 38 U.S.C.A. § 7111 (West Supp. 1999) and 38 C.F.R. § 20.1403 (1999). ORDER The veteran's motion alleging clear and unmistakable error in the Board's April 1958 decision is denied. JEFF MARTIN Member, Board of Veterans' Appeals