BVA9503843 DOCKET NO. 91-46 747 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the April 22, 1977 Regional Office rating decision contained clear and unmistakable error. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Navy from July 1975 to January 10, 1977. In February 1977, the appellant filed an initial claim for service connection for residuals of head injuries sustained during service. In an April 22, 1977 rating decision, the Department of Veterans Affairs Regional Office in San Diego, California service connection for postoperative basilar skull fracture with bone loss, and a 50 percent disability rating was assigned. Service connection was also granted for right temporal lobe hematoma and contusion with history of seizures (10%); defective hearing, left ear, with abnormal left eardrum and history of recurrent vertigo (10%); tinnitus with history of extensive ear mechanism trauma (10%); and residuals of fracture, left clavicle (0%). All disability ratings were effective from January 11, 1977. Service connection was denied for mental disorder, neuropathology secondary to head trauma. The appellant was informed of that decision by letter dated April 28, 1977. He did not appeal that decision within one year. In February 1988, the appellant filed a claim for service connection for a sleep disorder. His claim was denied by the Department of Veterans Affairs regional Office in Louisville, Kentucky in November 1988. In approximately August 1989, the appellant moved to Indiana. His case was reassigned to the Department of Veterans Regional Office in Indianapolis, Indiana. The appellant filed an appeal to the Board of Veterans' Appeals (the Board) in January 1990. In July 1992, a personal hearing was conducted before the undersigned member of the Board at its offices in Washington, D.C. In February 1993, the Board remanded this case so that additional medical testing could be done with respect to the appellant's claimed sleep disorder. In addition, the Board found that certain statements of the appellant could be taken to mean that he was raising the issue of the existence of clear and unmistakable error in the April 1977 rating decision. In an August 1993 rating decision, the Indianapolis RO found that no clear and unmistakable error existed in the April 1977 rating decision. A Supplemental Statement of the Case was issued in December 1993. In a May 1994 rating decision, the Indianapolis RO granted the appellant service connection for a sleep disorder and assigned a 20 percent disability rating, effective from February 1988. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he should have been assigned separate, compensable disability ratings for headaches, seizures and organic affective disorder in April 1977, based on the evidence of record at that time. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the April 1977 Regional Office decision did not contain clear and unmistakable error. FINDINGS OF FACT 1. The appellant served on active duty from July 1975 to January 1977. 2. In February 1977, the appellant filed a claim for service connection for severe head injury with basilar skull fracture; fracture, left clavicle; and conductive hearing loss with tinnitus. 3. In April 1977, the Regional Office granted the appellant service connection for postoperative basilar skull fracture with bone loss; right temporal lobe hematoma and contusion with history of seizures; defective hearing, left ear, with abnormal left eardrum and history of recurrent vertigo; tinnitus with history of extensive ear mechanism trauma; and residuals of fracture, left clavicle. CONCLUSION OF LAW The Regional Office rating decision of April 1977 did not contain clear and unmistakable error. 38 C.F.R. § 3.105(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking separate, compensable disability ratings for headaches, seizures and organic affective disorder, effective from January 11, 1977, the day after he left military service. He has alleged clear and unmistakable error in the April 1977 decision of the San Diego RO. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, it is believed that this case has been adequately developed for appellate purposes by VARO and that the Board may therefore proceed to a disposition on the merits without the necessity of another remand. "Clear and unmistakable error" VA regulations allow for further consideration and allowance after a previous unfavorable Regional Office decision, if there was clear and unmistakable error in that rating decision. 38 C.F.R. § 3.105(a) (1993). Before discussing the specifics of this case, the Board believes that it is important to emphasize the rather stringent standard which has been imposed by the United States Court of Veterans Appeals (the Court) with respect to clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). "...'Clear and unmistakable error' requires that error, otherwise prejudicial,...must appear undebatably." Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). "It must always 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) [emphasis added by the Court]. In order to determine whether the April 1977 rating decision contained clear and unmistakable error, we review the evidence which was before the rating board "at that time". 38 C.F.R. § 3.104(a) (1993). In other words, we cannot apply the benefit of hindsight to an evaluation of the rating board's action in 1977. The April 1977 rating decision Evidence before the rating board in April 1977 consisted of the appellant's service medical records. Those records revealed that in August 1976, the appellant sustained severe head injuries when he attempted to dive into a swimming pool from a second floor apartment balcony and missed the pool. The next day, a right temporal craniotomy was performed and a subdural hematoma and a ventrocerebral temporal hematoma were evacuated and contused portions of the temporal lobe were removed. His condition gradually improved. During his subsequent hospitalization of several months' duration, he never complained about headaches, seizures or cognitive problems. In October 1976, a U.S. Navy Medical Evaluation Board found that the appellant was unfit for service because of the following diagnoses: (1) severe head injury with basilar skull fracture, severe right temporal lobe contusion, right temporal intracerebral hematosion, right temporal intercerebral hematoma and right subdural hematoma; (2) fracture of the left clavicle; (3) marked conductive hearing loss, left, secondary to disruption of ossicles; and (4) acquired skull deformity. A report of a November 1976 U.S. Navy Physical Evaluation Board concluded with the same findings. In his February 4, 1977 Veteran's Application for Compensation or Pension (VA Form 21-526), the appellant requested service connection for (1) severe head injury with basilar skull fracture; (2) fracture, left clavicle; and (3) conductive hearing loss with tinnitus. The appellant was hospitalized at a VA facility from February 7 to February 14, 1977 due to left ear pain, hearing loss and tinnitus. Left posterior auricular partial mastoidectomy, synechiaectomy, and tympanoplasty were performed. The appellant did not mention headaches, seizures or cognitive difficulties. A complete VA physical examination of the appellant was completed in April 1977. He reported episodes of dizziness and occasional loss of balance and complained that he became easily tired. He stated that he had pain and ringing in his left ear, with associated headaches. The headaches did not occur every time he experienced ear pain. A neuropsychiatric examination was performed. The examiner noted that the appellant had experienced seizures shortly after his head trauma but he "has not had any more." The appellant described his headaches as being located in the supraorbital and temporal region, and being unaccompanied by nausea, vomiting, blurred vision, gastrointestinal or ocular symptoms. A neurological examination was essentially within normal limits. The neurologic diagnosis was no neuropathology found. Mental status examination did not reveal any evidence of temporal lobe pathology. The diagnosis was no mental disorder. Physical examination resulted in the following diagnoses: (1) fracture of the left clavicle; (2) history of basilar skull fracture; (3) history of right temporal lobe contusion; (4) history of right temporal lobe contusion; (5) history of right subdural hematoma; (6) fracture of the left clavicle [sic]; (7) history of hearing loss with disruption of the ossicles and ruptured tympanic membrane; (8) post-operative status of left partial mastoidectomy, synechiaectomy, removal of bony spurs from left ear and packing of the left middle fossa and bony defect with elastic implants and left tympanoplasty. As noted in the Introduction, in April 1977 service connection was granted for postoperative basilar skull fracture with bone loss; right temporal lobe hematoma and contusion with history of seizures; defective hearing, left ear, with abnormal left eardrum and history of recurrent vertigo; tinnitus with history of extensive ear mechanism trauma ; and residuals of fracture, left clavicle. Service connection was denied for mental disorder, neuropathology secondary to head trauma. Analysis Extensive medical evidence was added to the appellant's claims file subsequent to the April 1977 rating decision. As pointed out above, this evidence may not be considered in evaluating the correctness of the April 1977 decision. The appellant's current service-connected disorders are postoperative basilar skull fracture with bone loss; organic brain disorder with depression, due to brain trauma; secondary sleep disorder, consistent with or strongly suggestive of, but not diagnostic of, narcolepsy; headaches; simple partial seizure disorder; defective hearing, left ear, with abnormal left eardrum and history of recurrent vertigo; history of tinnitus, with extensive ear mechanism trauma; and residuals of fracture of left clavicle. In essence, the appellant believes that organic brain syndrome, headaches, and a seizure disorder, which are now separately rated disabilities, should have been service connected in April 1977. He has been somewhat vague concerning the alleged failings of that rating decision. The only specific criticism is that the report of the February 1977 VA examination did mention headaches and he therefore believes that this should have supported a grant of service connection for a headache disorder. It is noted that the appellant did not request service connection for organic affective disorder, headaches or a seizure disorder in his original February 1977 claim or at any other time before the Regional Office rendered the April 1977 decision. A careful review of the evidence of record in April 1977, which is described in detail above, indicates that organic brain syndrome, or indeed any chronic organic pathology consistent with brain damage, was not identified during the appellant's naval service or during the February 1977 VA neuropsychiatric examination. The February 1977 examiner was quite emphatic on that point. With respect to headaches, the appellant made no complaint of occasional headaches during service, and complained of such headaches during the February 1977 examination only in association with ear pain. No diagnosis of a separate headache disorder was made. Although the record indicates that the appellant may have had seizure activity shortly after his head injury, he denied recent seizures during the February 1977 VA examination. A seizure disorder was not diagnosed. It is clear that, given the high standard of "clear and unmistakable error" set by the Court, no such error appears in the April 1977 rating decision. The evidence of record at that time does not demonstrate that organic brain syndrome, headaches and seizures existed at that time as separately ratable entities. In fact, the evidence appeared to indicate that there was no organic brain symptomatology present; there were only occasional headaches, which were associated with the left ear disability; and the appellant had not experienced seizure activity since shortly after the head trauma. The Board again emphasizes that subsequent events, including the grant of service connection for organic brain syndrome, headaches and seizures as separately ratable entities years later, cannot be taken into consideration in connection with an analysis of clear and unmistakable error in April 1977. The Board has concluded that no clear and unmistakable error, that is, no "undebatable" error, existed in the April 1977 Regional Office rating decision. On the contrary, the rating decision appears to have been well supported by the evidence available to the rating board at that time. The benefits sought on appeal are therefore denied. ORDER The April 22, 1977 rating decision did not contain clear and unmistakable error. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.