Citation Nr: 0007732 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-10 289A ) DATE ) ) THE ISSUE Whether a December 31, 1986 decision by the Board of Veterans' Appeals denying entitlement to a rating in excess of 30 percent for fibrous dysplasia, left maxilla, postoperative residuals of neurectomy should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Cieplak, Associate Counsel INTRODUCTION The moving party served on active duty from September 1972 to July 1973. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the moving party as to clear and unmistakable error in a December 1986 Board decision. FINDINGS OF FACT 1. In a December 1986 decision, the Board denied a rating in excess of 30 percent for fibrous dysplasia, left maxilla, postoperative residuals of neurectomy. 2. The moving party has alleged that an increased evaluation should have been granted as the evidence supported the claim; and specifically, that the veteran's service-connected postoperative residuals of neurectomy with dysplasia, left maxilla, included injuries to the fifth and seventh cranial nerves; that the Board rated the veteran's disability under the seventh cranial nerve only; and that the medical evidence showed a complete paralysis of the fifth (trigeminal) cranial nerve. 3. The December 1986 Board decision failed to note that the RO had rated the moving party's cranial nerve injury under the diagnostic code for the seventh rather than fifth cranial nerve, and there was some medical evidence of seventh, as well of fifth cranial nerve injury; however, as there was no medical evidence of complete paralysis of the fifth cranial nerve, some of the medical evidence did not show seventh cranial nerve involvement, and as there was no medical evidence of more than mild seventh cranial nerve injury, such error does not compel the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The December 1986 Board decision denying a rating in excess of 30 percent for fibrous dysplasia, left maxilla, postoperative residuals of neurectomy, did not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION On December 31, 1986, the Board issued a decision denying an increased evaluation for service connected fibrous dysplasia, left maxilla, postoperative residuals of neurectomy. In August 1998, the moving party's representative filed a motion for reconsideration of the December 1986 Board decision, which continued a 30 percent evaluation for the subject disability. The Board denied the moving party's motion for revision and construed the motion to include a claim on the basis of clear and unmistakable error (CUE). Final determination on the potential CUE claim was deferred pending promulgation of final regulations. In March 1999, after the pertinent regulations were promulgated, the Board informed the moving party that it would not consider his earlier motion for reconsideration as a CUE motion unless he so desired. The moving party was afforded another period within which to reply, and, in March 1999, his representative indicated a desire for the motion to be regarded as a CUE claim. After review of the claims folder, his representative submitted a written brief, dated November 8, 1999, in support of the moving party's motion for revision of the Board's decision of March 19, 1998. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411 (1999). Pursuant to 38 C.F.R. § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 38 C.F.R. § 20.1403, relates to what constitutes CUE and what does not, and provides as follows: (a) General. Clear and unmistakable error 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. (b) Record to be reviewed.--(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. 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. (d) Examples of situations that are not clear and unmistakable error. - (1) Changed diagnosis. A new medical 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. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. 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. (Authority: 38 U.S.C.A. §§ 501(a), 7111). The Board emphasizes that 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. The moving party served on active duty from September 1972 to July 1973. An RO decision in November 1973 denied his original claim for service connection for left zygomatic fibrous dysplasia on the basis that the disability was a constitutional or developmental abnormality. The moving party appealed that decision, and the Board remanded the case to the RO in September 1974. Pursuant to that remand, the RO obtained additional service medical records, which included a Physical Evaluation Board (PEB) report with a conclusion that the moving party fibrous dysplasia of the left zygomatic, maxillary sphenoid, and frontal bones existed prior to service and was not aggravated therein. The RO confirmed its earlier denial, but the Board, in an August 1975 decision, granted service connection for fibrous dysplasia of the left maxilla on the basis that, since the preenlistment examination was normal, the disability was first manifest during service. Pursuant to that Board decision and following the receipt of additional post-service medical evidence, the RO, in a September 1975 decision, granted service connection and assigned a 10 percent rating for fibrous dysplasia involving the left maxilla. The medical evidence showed that the moving party was evaluated on a number of occasions for left facial pain. He underwent resection of the left infraorbital and zygomatic nerves in January 1975. Postoperatively, the moving party continued to have pain, but, because there was no obvious external deformity, it was a treating physician's opinion that the moving party persistent pain could be due to his habituation of narcotics (Percodan). The moving party was hospitalized in a VA medical center in April 1976 for evaluation of paroxysmal pain in the left face in V1 and V2 since 1973. Clinical findings included asymmetric face for prominent-zygomatic bone on the left side and hyperesthesia in V-2 on the left. Skull X-rays disclosed fibrous dysplasia on the left skull base. The moving party underwent a left retromastoid craniectomy, which revealed a vein compressing the fifth nerve, and a differential sensory root section was performed. The discharge diagnosis was left congenital neuralgia of V-2, secondary to fever of dysplasia with compression of V-2 in the base of the skull. A VA medical center discharge summary shows that the moving party underwent exploration of the posterior fossa through the same craniectomy defect in the left retromastoid region; a differential resection of the sensory root of the trigeminal nerve at the brain stem was performed. Postoperative course was good. Clinical findings included hypalgesia and hyperesthesia in V-1, analgesia and anesthesia in V-2, and normal V-3. A June 1977 RO decision, in pertinent part, rated the moving party disability as follows: fibrous dysplasia involving the left maxilla with postoperative residuals of a neurectomy with left congenital neuralgia of V-2 with insensitivity of the teeth, gums, and diminished taste sensation, on the left. The RO increased the rating to 30 percent. Clinical records from June 1982 through March 1983 show that the moving party was evaluated for facial pain. A third occipital nerve block was planned. In September 1984, a VA neurological assessment was afforded, which reported fibrous dysplasia of the skull and mandible, primarily on the left side. The patient was status post trigeminal resections of two of the distributions of the fifth cranial nerve. The III distribution of the fifth cranial nerve was unaffected. A mild left seventh cranial nerve palsy was also noted. The impression was fibrous dysplasia. The examiner noted there was ample reason for a chronic pain syndrome, the severity of which could only be guessed. A dental examination reported clinical and radiographic evidence of an increase in size of the left zygoma, suggestive of fibrous dysplasia. At the time of the 1986 subject Board decision, the service connected disability was characterized as fibrous dysplasia, left maxilla, post operative residuals of neurectomy, which, while an unlisted condition, was considered pursuant to Diagnostic Code 5016-8407. When an unlisted condition is encountered it is permissible to rate under a closely related disease to injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Disability affecting the fifth (trigeminal) cranial nerve is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8205, which provides that evaluation of paralysis is dependent upon the relative degree of loss of innervation of the facial muscles. A 10 percent evaluation is warranted for moderate incomplete paralysis. A 30 percent evaluation requires severe incomplete paralysis. A 50 percent evaluation requires complete paralysis. Disability affecting the seventh (facial) cranial nerve is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8207, which provides that evaluation of paralysis is dependent upon the relative degree of loss of innervation of the facial muscles. A 10 percent evaluation is warranted for moderate incomplete paralysis. A 20 percent evaluation requires severe incomplete paralysis. A 30 percent evaluation requires complete paralysis. The argument is advanced that the disability should have been evaluated pursuant to Diagnostic Code 8205-8405 for disability of the fifth (trigeminal) cranial nerve, which is rated as paralysis, rather than the seventh cranial nerve. It is asserted that the evidence demonstrated that "the fifth cranial nerve was shown to have been completely severed at the time of the Board's [December 1986] decision." The medical evidence on file at the time of the 1986 Board decision showed that the moving party had a history of trigeminal nerve resections of two of the distributions of the fifth cranial nerve and mild left seventh cranial nerve palsy. While there was medical evidence of that both the fifth and seventh cranial nerves were involved, there was other medical evidence showing only fifth cranial nerve injury. Thus, while it was error in not rating the moving party cranial nerve injury under the diagnostic code for the fifth cranial nerve, rather the seventh cranial nerve, it was not clear and unmistakable error because the result would not have been manifestly different but for the error. This is because, while there were resections of two of the distributions of the fifth cranial nerve, the III distribution of the fifth cranial nerve (V-3) was unaffected, which rules out complete paralysis of that nerve. It follows that a rating in excess of 30 percent, which was the moving party evaluation at that time, was not warranted under the rating criteria for a fifth cranial nerve injury. As to the question of whether there was error in not granting a separate compensable rating for mild paralysis of the seventh cranial nerve, while there was some medical evidence of seventh cranial nerve involvement, there was other medical evidence that showed only fifth cranial nerve injury. Thus, it was not undebatably erroneous in not rating the moving party disability under both diagnostic codes. Moreover, a compensable rating would not have been warranted unless there was moderate incomplete paralysis of the seventh nerve, and the only medical evidence that addressed the degree of paralysis due to seventh nerve injury noted only mild left seventh cranial nerve palsy. Since it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable, and the motion must be denied. ORDER The motion for revision of the December 1968 Board decision on the grounds of CUE is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals