Citation Nr: 0005615 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 97-32 566A ) DATE ) ) THE ISSUES 1. Whether a July 1945 decision of the Board of Veterans' Appeals (Board) finding that residuals of injury to the veteran's left hand were not incurred in line of duty, but were a result of his own willful misconduct should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Entitlement to an effective date prior to June 11, 1992, for the grant of service connection for traumatic amputations of four digits of the left hand. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from December 1942 to December 1944. This matter comes before the Board on motion from the veteran to revise or reverse a July 1945 decision of the Board. The issue of entitlement to an effective date prior to June 11, 1992, for the grant of service connection for traumatic amputations of four digits of the left hand is the subject of the remand portion of this decision. FINDINGS OF FACT 1. In a July 1945 decision the Board found that residuals of injury to the veteran's left hand were not incurred in line of duty, but were a result of his own willful misconduct. 2. The July 1945 Board decision was reasonably supported by the evidence of record. CONCLUSION OF LAW The July 1945 Board decision finding that residuals of injury to the veteran's left hand were not incurred in line of duty, but were a result of his own willful misconduct was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109(a), 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1400, 20.1403, 20.1405 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence of record at the time of the Board's July 1945 decision included a May 1, 1944 service memorandum advising that mines had been found on road shoulders and directed that personnel should be apprised of this, and that the first step in repairs to any newly assigned road repair project, where a previous thorough search had not been accomplished, should be to make a thorough search for mines. A May 10, 1944 service medical record reflects that the veteran had been injured at 0845 hours on May 10, 1944, when an artillery shell exploded as the soldier was picking at it with his knife. It was the writer's understanding that the veteran did this after being warned by a noncommissioned officer. A May 11, 1944 service record reflects that the veteran was engaged in authorized company duties repairing a road on May 10, 1944. Statements from nine separate witnesses, all dated May 11, 1944, to the extent they addressed the issue of whether the veteran had been advised by his superiors and others to put the artillery shell down and not play with it, unequivocally indicate that the veteran did have the artillery shell in his hand and was playing with it after he had been advised to throw it away and not play with it. Two statements, from A. M. Towles and A. L. Brown, addressed the actual detonation of the shell. Both indicate that the shell detonated when it was struck against a culvert, with Towles indicating that detonation occurred when the veteran jumped off the culvert and his hand swung back with the nose of the shell hitting the culvert and Brown indicating that the veteran was striking the shell against the culvert wall in an attempt to disassemble it. A July 1944 report of service investigation reflects that it was concluded that the veteran was injured when a 20- millimeter shell exploded while he was playing with it after striking the nose of the shell against a wall causing it to detonate. The investigation found that the veteran was not exercising reasonable care for his own safety, that he was violating a civil, moral, or military law, or military orders or instructions, written or verbal, and that the violation was the proximate cause, that injury was due to the veteran's gross carelessness or negligence and was not in line of duty, but was due to the veteran's own misconduct. The transcript of a personal hearing held in April 1945 reflects that the veteran reported that he had been digging shells when one blew off the fingers of his left hand. He indicated that no one had told him that it was dangerous. The transcript reflects that the veteran testified that his left hand was at the bottom of the shell at the time of the explosion and that he had never seen any of the shells before. A decision issued by the Board is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 1991); 38 C.F.R. § 20.1104 (1999). However, the law provides that a final Board decision may be revised or reversed on the grounds of CUE. 38 U.S.C.A. §§ 5109A(a), 7111(a). Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). 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. Generally, 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 incorrectly applied. 38 C.F.R. § 20.1403(a). 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 CUE. 38 C.F.R. § 20.1403(c). Under 38 C.F.R. § 20.1403(d), it is specifically provided that CUE does not include a disagreement as to how the facts were weighed or evaluated. In this case, the veteran alleges CUE in the July 1945 Board decision which found that residuals of injury to his left hand were not incurred in line of duty and were a result of his own willful misconduct. The Board concluded that the residuals of injury to the veteran's left hand were a result of his own gross carelessness or gross negligence and his violation of specific orders, an act "malum prohibitum," involving conscious wrongdoing or known prohibited action, which constituted willful misconduct. According to the law in effect at the time of the decision at issue, a disabling condition would be considered to be the result of misconduct for the purposes of all adjudications when it is shown to have been incurred under conditions or in a manner set forth by 38 C.F.R. § 35.10(i). 38 C.F.R. § 2.1065 (1938). A disability will be held to have resulted from misconduct when it is, inter alia, a result of gross negligence or gross carelessness. 38 C.F.R. § 35.10(i) (1938). Gross negligence or gross carelessness, as referred to in 38 C.F.R. § 35.10(i), is defined as the want of slight care. 38 C.F.R. § 2.1065(c). 38 C.F.R. § 2.1065(b) provides that in certain applications the word "willful misconduct" will be as defined by precedents under World War Veterans' Act, 1924, as amended. Public Law 439 of the 78th Congress (1944), provided that an injury or disease incurred during military or naval service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when a person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active service in the military or naval forces, whether on active duty or on authorized leave, unless such injury or disease was the result of his own willful misconduct. Generally the precedents with respect to what constitutes willful misconduct under the World War Veterans' Act, 1924, as amended, are to the effect that an act to be one of "willful misconduct" must be "malum in se" or "malum prohibitum" if involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 2.1065(c) (1946). The veteran and his representative have argued that the 1994 decisions which granted service connection for residuals of shell fragment wounds were based on essentially the same evidence that was before the Board in July 1945. It is also argued that the Board relied on testimony and statements of witnesses as fact when in actuality the testimony and statements were inconsistent. It is further asserted that witnesses may have been prejudiced by the circumstances surrounding the incident and that the evidence at the time shows that the veteran had no intent to cause accident or injury. The argument with respect to whether or not the testimony and statements were inconsistent or whether they were considered as facts is in essence a disagreement as to how the facts were weighed or evaluated. Further, with respect to the assertion that the veteran had no intent to cause accident or injury, the Board observes that the applicable law and regulations applied in July 1945 were correct in that a determination was made with respect to whether or not the veteran's act that resulted in injury was a result of his own gross carelessness or gross negligence and was an act "malum prohibitum." The evidence of record at the time of the July 1945 Board decision supports a finding that the veteran's actions with the artillery shell, as the facts were known at that time, were accomplished with the veteran's knowledge, in the form of communications from his superiors, that his handling of the artillery shell was prohibited, i.e. an act malum prohibitum, and that his actions constituted gross carelessness or gross negligence, i.e., were accomplished with the want of slight care. Accordingly, the July 1945 Board decision applied the correct facts as they were known at that time as well as the correct statutory and regulatory provision and the decision was supported by the evidence then of record in concluding that the veteran's injuries on May 10, 1944 were a result of his own willful misconduct and were not in line of duty. The Board is unable to find any error of fact or law in the July 1945 decision which, had it not been made, would have manifestly changed the outcome when it was made. 38 C.F.R. § 20.1403(c). No viable allegation of CUE has been presented in the July 1945 Board decision that found that the veteran's injuries to the left hand were not incurred in line of duty and were the result of his own willful misconduct. In the absence of any such CUE, the veteran's motion must be denied. ORDER In the absence of CUE in the July 1945 decision of the Board that found that injuries to the left hand were not incurred in line of duty but were the result of the veteran's own willful misconduct, the veteran's motion is denied. REMAND A June 1994 decision by a Department of Veterans Affairs Regional Office (RO) granted service connection for traumatic amputation of four digits of the left hand, effective June 11, 1992. The veteran was notified of that action by official letter dated June 21, 1994. A communication, received June 12, 1995, from an attorney representing the veteran at that time reflects disagreement with the effective date assigned for the grant of service connection. A statement of the case with respect to the appeal of the effective date assigned by the June 1994 RO decision has not been issued. Where there is a notice of disagreement, a remand, not referral, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). In light of the above, the appeal is REMANDED to the RO for the following: The RO should issue a statement of the case addressing the issue of entitlement to an effective date prior to June 11, 1992, for the grant of service connection for traumatic amputations of four digits of the left hand. All appropriate appellate procedures should then be followed. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran unless he is otherwise notified. U. R. POWELL Member, Board of Veterans' Appeals