BVA9505906 
DOCKET NO.  92-13 442     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

1.  Whether there was clear and unmistakable error in rating
decisions dated in January 1964 and December 1965, which denied
entitlement to special monthly pension at the aid and attendance
rate while hospitalized.

2.  Whether there was clear and unmistakable error in the April
1977 rating decision.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

Grace Jivens-McRae, Counsel

INTRODUCTION

The veteran served on active duty from July to November 1952.

This appeal arises from a March 1992 rating decision of the
Nashville, Tennessee, Department of Veterans Affairs (VA)
Regional Office (RO), which concluded there was no clear and
unmistakable error in rating decisions dated in January 1964 and
December 1965 which denied entitlement to special monthly pension
at the aid and attendance rate while hospitalized and in the
rating decision of April 1977.  This claim was remanded in May
1993 and again in May 1994 for further procedural development.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative contend, in essence, that the
veteran should have received aid and attendance benefits during
his December 1959 to March 1961, September 1963 and January to
February 1977 hospitalizations.  It was alleged that these rating
actions which denied these benefits, dated January 1964, December
1965, and April 1977, were clearly and unmistakably erroneous.

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 veteran's claims file.
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 there was no clear and unmistakable error in the
rating actions of January 1964 and December 1965 which denied
entitlement to special monthly pension at the aid and attendance
rate while hospitalized and the appeal of clear and unmistakable
error in the April 1977 rating action is terminated because of
the absence of legal merit.

FINDINGS OF FACT

1.  By rating actions of January 1964 and December 1965, the RO
denied entitlement to special monthly pension at the aid and
attendance rate while hospitalized.  Those decisions, which were
not timely appealed, were consistent with the evidence then of
record.

2.  Rating action of April 1977 confirmed and continued the
December 1965 rating action which denied entitlement to special
monthly pension at the aid and attendance rate while hospitalized
and dealt with the issue of the veteran's competency from
February 1977.

CONCLUSIONS OF LAW

1.  The unappealed final January 1964 and December 1965 rating
actions which denied entitlement to special monthly pension at
the aid and attendance rate while hospitalized were not clearly
and unmistakably erroneous.  38 U.S.C.A. §§ 5107, 7105 (West
1991); 38 C.F.R. § 3.105(a) (1994).

2.  The April 1977 rating action was not indicative of a previous
final determination necessary for a finding of clear and
unmistakable error.  38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.1(p),
3.105(a), 3.151(a) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Whether There was Clear and Unmistakable
Error in the January 1964 Rating Action Which
Denied Entitlement to Special Monthly Pension
at the Aid and Attendance Rate While
Hospitalized

The Board has considered the assertion by the representative that
the Board did not fulfill its duty to assist the appellant in the
proper development of his claim because the rating decisions in
question were based entirely on hospital summaries and not actual
inpatient doctor's, nursing or progress notes.  It is the
representative's assertion that actual hospitalization records
should have been utilized in the rating of the veteran.  The
issue before the Board is whether there was clear and
unmistakable error in the January 1964 rating action which denied
entitlement to special monthly pension at the aid and attendance
rate while hospitalized.  The United States Court of Veterans
Appeals (Court) held in Russell v. Principi, 3 Vet.App. 310, 314
(1992) (en banc) that clear and unmistakable error must be based
on the record and law that existed at the time of the prior
decision.  Clear and unmistakable error is based upon an
assertion that the law was incorrectly applied as it existed at
the time of the disputed adjudication.  Therefore evidence that
was not a part of the record at the time of the prior
determination (i.e. the actual inpatient doctor's, nursing or
progress notes) may not form the basis of a finding of clear and
unmistakable error.  Moreover, the Court held in Caffrey v.
Brown, 6 Vet.App. 377 (1994) that the VA's breach of the duty to
assist cannot form the basis of a claim of clear and unmistakable
error because the failure to develop creates only an incomplete
rather than an incorrect claim.  Therefore, the representative's
argument that the Board failed in this claim to fulfill the duty
to assist as mandated by 38 U.S.C.A. § 5107(a) is without merit
as the failure to develop cannot be the basis of a claim for
clear and unmistakable error.

Under applicable criteria, when a veteran is hospitalized,
additional compensation or increased pension for regular aid and
attendance will be discontinued, effective the date of admission
to a VA hospital except that the allowance for aid and attendance
will be continued during hospitalization where the disability is
paraplegia involving paralysis of both lower extremities,
together with loss of anal and bladder sphincter control, or
Hansen's disease or in the case of pension only, the aid and
attendance allowance will be continued where the pensionable
disability is blindness (visual acuity 5/200 or less) or
concentric contraction of visual field to 5 degrees or less.
38 C.F.R. § 3.552(a)(1)(2)(b)(1) (1964).  The law grants a period
of one year from the date of the notice of the result of the
initial determination for initiating an appeal by filing a notice
of disagreement; otherwise, that decision becomes final and is
not subject to revision on the same factual basis in the absence
of clear and unmistakable error.  38 U.S.C.A. § 7105; 38 C.F.R.
§ 3.105(a).

By rating action of January 1964, the RO determined that
entitlement to special monthly pension at the aid and attendance
rate was not warranted while hospitalized.  In a statement of
October 1994, the representative argued that the veteran was not
notified that he was not entitled to special monthly pension at
the aid and attendance rate while hospitalized.  However, a
review of the record reveals that a letter was sent by the RO to
the veteran in February 1964 indicating his award of aid and
attendance benefits.  That letter, which included enclosures,
stated, in pertinent part, that if the veteran was hospitalized
or provided domiciliary care at a VA hospital or at VA expense,
his pension benefits would be reduced.  He was also notified of
his appellate rights, but he did not appeal within the statutory
one-year time limit.  Therefore, that determination became final
and will be accepted as correct in the absence of clear and
unmistakable error.  38 C.F.R. § 3.105(a).

In Russell v. Principi, 3 Vet.App. 310, 313-14 (1992), the United
States Court of Veterans Appeals (Court) propounded a
three-pronged test to determine whether clear and unmistakable
error was present in a prior determination:  (1) either the
correct facts, as they were known at the time, were not before
the adjudicator (i.e., more than a simple disagreement as to how
the facts were weighed or evaluated) or the statutory or
regulatory provisions extant at the time were incorrectly
applied; (2) the error must be 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) a determination that there was
clear and unmistakable error must be based on the record and law
that existed at the time of the prior adjudication in question.

In Fugo v. Brown, 6 Vet.App. 40, 43-4 (1993), the Court defined
and elaborated upon that test as follows:

          "...[CUE] is a very specific 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 results would have been manifestly
different but for the error....If a
claimant-appellant wishes to reasonably
raise CUE there must be some degree of
specificity as to what the alleged error is
and, unless it is the kind of error...that,
if true, would be CUE on its face,
persuasive reasons must be given as to why
the results would have been manifestly
different but for the alleged error.  It
must be remembered that there is a
presumption of validity to otherwise final
decisions and that where such decisions are
collaterally attacked, and a CUE claim is
undoubtedly a collateral attack, the
presumption is even stronger."

In this case, the allegation of error is predicated on the belief
that the veteran's disabilities at the time of his initial claim
substantiated a finding in favor of special monthly pension at
the aid and attendance rate while hospitalized.  The accredited
representative also asserts that the veteran warranted this
benefit as a result of not only his September 1963
hospitalization, but also as a result of his December 1959 to
March 1961 hospitalization.

The evidence considered by the RO at the time it made its January
1964 decision consisted of the clinical record of his September
1963 hospitalization report, an addendum to that report dated
October 1963 and an aid and attendance examination report
performed during his September 1963 hospitalization.  The veteran
was admitted for evaluation of his condition following his
gunshot wound to the head.  A history was made which indicated
that the veteran sustained a gunshot wound to the head and right
arm in December 1959.  He was admitted to the hospital at that
time in a semicomatose condition and the wound was debrided.  He
gradually cleared mentally, but had weakness of the left lower
extremity.  In 1960, he developed a staphylococcus meningitis
which cleared on therapy.  He later had thrombophlebitis of the
left leg and several episodes of pulmonary infarction.  In
September 1960, a bilateral superficial femoral vein ligation was
done.  At the time of his September 1963 hospitalization, he had
a right homonymous hemianopsia.  While reading, he stated he
could only see two letters at a time.  He was able to read very
slowly and after a short period of time, he had watering and pain
in both eyes.  He had occasional generalized headache which was
not relieved by aspirin.  He also had frequent sharp transient
pain to the head.  He had some difficulty with speech and was
unable to think of words he wanted to say.  He had some
constipation and took enemas regularly.  There was no bladder
disturbance.  Physical examination during hospitalization
revealed depressed scars in the occipital and right parietal
areas.  The fundi were normal.  Rectal examination revealed good
sphincter tone.  The prostate was of normal size and there were
no hemorrhoids.  There were no deformities of the extremities.
Neurological examination revealed the veteran to be alert,
cooperative and well oriented.  Weakness of both legs was
present.  This was more marked on the left.  There was decrease
of painful and touch sensations of both legs and of the trunk up
to about T4 on the right and T10 on the left.  Position sense was
absent in the left leg and diminished in the right.  It was
intact in the upper extremities.  Reflexes were hyperactive in
both legs, but were equal.  The September 1963 hospitalization
was done for observation and evaluation of the veteran's
condition following the gunshot wound of the head in 1959.
Physical findings were as noted and the veteran had considerable
difficulty in getting around and remained in his wheelchair when
he was out of bed.  He required assistance in getting from the
wheelchair to the bed and vice versa.  He had very little use of
either leg.  He was seen in the eye clinic where he was found to
have markedly constricted visual fields secondary to brain
trauma.  The pertinent diagnoses were cerebral injury secondary
to gunshot wound of the head, old, with right homonymous
hemianopsia and weakness and decreased sensation of both legs,
and chronic brain syndrome secondary to cerebral injury with loss
of memory and perception.

An addendum to the veteran's September 1963 hospitalization
report was dictated in October 1963.  It was noted that the
veteran had marked weakness and spasticity of the left lower
extremity and moderate weakness and spasticity of the right lower
extremity.  He required assistance in getting from chair to bed
and vice versa; also in getting from chair to crutches.  With
crutches, he was able to ambulate for short distances, without
assistance.  He was able to dress and feed himself, but required
assistance in getting to the bathroom.  Bowel function was
regulated by use of suppositories every 2 to 3 days.  An external
attachment and davol apparatus were used because of bladder
incontinence.

Also during hospitalization, an aid and attendance examination
report for the need for regular aid and attendance was performed.
The report was a basic reiteration of the veteran's September
1963 hospitalization report.

The accredited representative asserts that the veteran has been
entitled to special monthly pension at the aid and attendance
rate while hospitalized not only in 1963, when the initial claim
was made, but his hospitalizations of December 1959 to March 1961
and in September 1962 indicate that he was entitled to special
monthly pension at the aid and attendance rate while hospitalized
during those hospitalizations.  This, however, is not the case.
At the outset, it is important to note that the veteran did not
have a claim for aid and attendance before VA while hospitalized
in 1959 to 1961 and again in September 1962.  A Report of Contact
dated January 1960 and executed by the VA Contact Representative
indicates, in pertinent part that the veteran's wife was
interviewed in December 1959 after the veteran was hospitalized
with a gunshot wound to the head and arm.  VA benefits were
discussed and no action was taken.  The veteran's condition at
that time was undetermined and no claim was filed.  After it
became apparent that the veteran's condition was likely to leave
him totally and permanently disabled, a claim for Compensation or
Pension was filed on the veteran's behalf in January 1960 by the
VA Contact Representative.  By rating action of January 1961, the
veteran was determined to be totally disabled at that time but
markedly improving under continuing treatment.  The RO indicated
that permanency of total disability could not be concede at that
time.  By rating action of March 1961, the RO determined that the
rating action of January 1961 was clearly and unmistakably
erroneous.  The veteran was declared permanently and totally
disabled for pension purposes from December 12, 1960.  The
veteran's initial claim for aid and attendance was not made until
September 1963.  Therefore, the veteran's benefits for aid and
attendance while hospitalized could not be awarded prior to a
claim for aid and attendance benefits.  For such benefit, the law
required that the veteran have paralysis of both lower
extremities together with loss of anal and bladder sphincter
control.  A review of the record shows that the veteran, who had
weakness of the lower extremities, was able to ambulate short
distances with the use of crutches.  Therefore, there was a basis
for holding that the veteran did not have complete paralysis or
that degree of paralysis necessary for a conclusion that aid and
attendance benefits should continue during hospitalization.
Additionally, there is no showing that the veteran has Hansen's
disease or that he has a pensionable disability of blindness with
visual acuity 5/200 or less or concentric contraction of visual
field to 5 degrees or less.  The finding that the veteran's
weakness of the lower extremities was not complete paralysis of
the lower extremities, was a matter of judgment on the part of
the adjudicator.  Clear and unmistakable error requires more.
The record shows that the RO's determination that the veteran did
not meet the criteria necessary for entitlement to special
monthly pension at the aid and attendance rate while hospitalized
was plausible.  There is no clear and unmistakable error in a
previous rating decision pursuant to 38 C.F.R. § 3.105(a).

II.  Whether There was Clear and Unmistakable
Error in the Rating Decision of December 1965
Which Denied Entitlement to Special Monthly
Pension at the Aid and Attendance Rate While
Hospitalized

Under applicable criteria, when a veteran is hospitalized at the
expense of the United States Government, increased pension for
regular aid and attendance will be discontinued except where the
disability is paraplegia involving paralysis of both lower
extremities, together with loss of anal and bladder sphincter
control, or Hansen's disease.  Additionally, in pension cases
only, the aid and attendance allowance will be continued where
the pensionable disability is blindness (visual acuity 5/200 or
less) or concentric contraction of visual field to 5 degrees or
less.  38 C.F.R. § 3.552(a)(1)(2) (1965).  The law grants a
period of one year from the date of the notice of the result of
the initial determination for initiating an appeal by filing a
notice of disagreement; otherwise, that determination becomes
final and is not subject to revision on the same factual basis in
the absence of clear and unmistakable error.  38 U.S.C.A. § 7105;
38 C.F.R. § 3.105(a).

By rating action of December 1965, the RO continued entitlement
to pension benefits as well as special monthly pension for aid
and attendance.  The RO determined that the veteran was not
entitled to aid and attendance while hospitalized.  As previously
stated, the representative, in an October 1994 statement,
indicated that the veteran had not been appropriately notified
that he was not entitled to aid and attendance benefits while
hospitalized.  The December 1965 rating action was instituted in
relation to a routine future examination.  The RO continued
entitlement to pension benefits, as well as special monthly
pension at the aid and attendance rate.  The veteran was found
not to be entitled to aid and attendance while hospitalized and
also deemed incompetent from November 1965.  Later that month,
the veteran was sent a disability pension award letter which
informed him that his award of pension included an increase of
$100 monthly because the evidence showed that he was in need of
regular aid and attendance.  He was also told that his pension
would be reduced, effective the first day of the second calendar
month after he was furnished hospitalization, domiciliary or
nursing home care by the VA.  This reduction would continue
during the remaining period of such treatment or care.  He was
also notified of his appellate rights, but did not appeal within
the statutory one-year time limit.  Therefore, the determination
became final.  If a revision were to be warranted in this case, a
finding of clear and unmistakable error in the December 1965
rating decision would have to be found.

In Russell v. Principi, 3 Vet.App. 310, 313-14 (1992), the Court
propounded a three-pronged test to determine whether clear and
unmistakable error was present in a prior determination:
(1) either the correct facts, as they were known at the time,
were not before the adjudicator (i.e., more than a simple
disagreement as to how the facts were weighed or evaluated) or
the statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the error must be 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) the determination
that there was clear and unmistakable error must be based on the
record and the law that existed at the time of the prior
adjudication in question.

In Fugo v. Brown, 6 Vet.App. 40, 43-4 (1993), the Court refined
and elaborated upon that test as follows:

          ... [CUE] is a very specific 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 results would have been manifestly
different but for the error....If a
claimant-appellant wishes to reasonably
raise CUE there must be some degree of
specificity as to what the alleged error is
and, unless it is the kind of error...that,
if true, would be CUE on its face,
persuasive reasons must be given as to why
the result would have been manifestly
different but for the alleged error.  It
must be remembered that there is a
presumption of validity to otherwise final
decisions, and that where such decisions are
collaterally attacked, and a CUE claim is
undoubtedly a collateral attack, the
presumption is even stronger.

The evidence considered by the RO at the time it made its
December 1965 rating decision consisted of June 1965 and November
1965 hospitalization reports.  During the veteran's June
hospitalization, he was admitted for a checkup with complaints of
pain in the small of his back when he did not wear his left leg
brace.  He complained of episodes of nausea, feeling of going to
have a bowel movement, and an inability to call his wife's name.
These episodes occurred 2 or 3 times a year.  The most recent
episode was four months prior to his admission.  He complained of
urgency of micturition, some impairment of sexual function and
indicated that he used suppositories and some digital and fleet
enemas to empty his rectum.  The veteran was described as a
slightly obese middle-aged man with marked paresis of the left
lower extremity and at ease.  He was given physical medical
therapy.  After being warned not to drive or to deal with
dangerous machinery, he was discharged.  The pertinent diagnoses
were cerebral injury secondary to gunshot wound of the head, old,
with right homonymous hemianopsia and weakness and decreased
sensation of both legs and chronic brain syndrome secondary to
cerebral injury with loss of memory and perception.

In November 1965, the veteran was referred to the psychiatric
service for a requested mental competency opinion.  The
examination report reflected a previously stated history relating
to his gunshot wound sustained in 1959.  It was noted that there
were weakness and decreased sensation of both legs and that he
was unable to read because of his visual defect.  He stated that
he had no bowel movements except with enemas.  He walked a little
with crutches.  He did not go anywhere unaccompanied.  The
diagnoses were chronic brain syndrome associated with brain
trauma with mental confusion, memory impairment, perceptual
disturbances and marked loss of self-confidence, including some
defects of judgment.  The psychiatrist determined the veteran to
be mentally incompetent for VA purposes and recommended that a
guardian be appointed.

While hospitalized, an examination for the need of regular aid
and attendance was performed.  The examiner noted that the
veteran was able to feed, shave and dress himself.  It was stated
that the veteran could not attend to the wants of nature and that
he was a paraplegic due to encephalopathy.  The diagnosis was
encephalopathy with hemiparesis of both legs and hemianopsia.

After a review of the record, the Board concludes that the
unappealed December 1965 rating action which determined that the
veteran was not entitled to special monthly pension at the aid
and attendance rate while hospitalized was supported by evidence
then of record, and is not clearly and unmistakably erroneous.
The RO considered the June 1965 and November 1965 hospitalization
reports, to include the report of examination for need for
regular aid and attendance dated in November 1965.  Although the
aid and attendance examination report indicated that the veteran
was paralyzed due to his encephalopathy, the hospitalization
report of November 1965 which found the veteran to be mentally
incompetent for VA purposes revealed that the veteran walked a
little with crutches, but was unable to go anywhere
unaccompanied.  Complete paralysis was not present.  The Board
finds that the December 1965 RO conclusion that the veteran was
not entitled to special monthly pension at the aid and attendance
rate while hospitalized represents a reasonable exercise of
rating judgment, and is not clearly an error "the existence of
which...is undebatable, or about which reasonable minds cannot
differ" as contemplated in Russell.  The Board is also satisfied
that the correct facts, as they were known at the time, were
before the adjudicator in December 1965, and that the regulatory
provisions extant at that time (including 38 C.F.R. 3.552) were
correctly applied.  Moreover, the veteran failed to appeal the
December 1965 rating action denying entitlement to special
monthly pension at the aid and attendance rate, which
determination is presumed valid, per Fugo.  Therefore, there is
no clear and unmistakable error in the December 1965 rating
decision pursuant to 38 C.F.R. 3.105(a) which established that
the veteran was not entitled to special monthly pension at the
aid and attendance rate while hospitalized.

III.  Whether There was Clear and Unmistakable Error in the
Rating Decision of April 1977 Which Denied Entitlement
to Special Monthly Pension at the Aid and Attendance Rate
While Hospitalized

In this case, the April 1977 rating action was issued in an
effort to change the determination that the veteran was
incompetent from November 1965 to February 3, 1977, to a finding
that the veteran was mentally competent, effective from
February 4, 1977.  In the April 1977 rating decision, the RO
confirmed and continued the December 1965 rating action which
found that the veteran was in need of aid and attendance due to
the severity of his physical disabilities.  The rating action was
not made in response to a claim for aid and attendance while
hospitalized, but dealt only with a finding as to the veteran's
competency and the confirmation of a prior rating action as to
the veteran's need for aid and attendance due to the severity of
his physical disabilities.  No formal or informal claim
requesting a determination of entitlement to special monthly
pension at the aid and attendance rate was ever made in
connection with the April 1977 rating action.  See 38 C.F.R.
3.1(p).  Applicable criteria provide that a specific claim in the
form prescribed by the Secretary must be filed in order for
benefits to be paid under the laws administered by VA.  38 U.S.C.
5101(a); 38 C.F.R. 3.151(a).  Since the RO only confirmed and
continued the December 1965 rating action which has already been
discussed, and no final determination as to aid and attendance
while hospitalized was made in the April 1977 rating action,
there is no basis upon which to find the April 1977 rating action
clearly and unmistakably erroneous as to the RO's failure to
grant aid and attendance benefits while hospitalized.  In a case
such as this, where the law and not the evidence is dispositive,
the appeal to the Board is terminated because of the absence of
legal merit.  Sabonis v. Brown, 6 Vet.App. 426, 430 (1994).

ORDER

The appeal as to whether there was clear and unmistakable error
in the rating decisions dated in January 1964, and December 1965
as to entitlement to special monthly pension at the aid and
attendance rate while hospitalized is denied.

The appeal as to whether there was clear and unmistakable error
in the rating decision dated April 1977 as to entitlement to
special monthly pension at the aid and attendance rate while
hospitalized is dismissed.

          BRUCE KANNEE
          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.