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Bva Decision Date 07/2011 - Cue Granted Back To 1969


BVA - Decision Date: 07/21/11

CUE granted back to 1969



3. The March 1970 rating decision granting service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound and assigning a noncompensable evaluation contained CUE in that it failed to identify and apply any evaluation criteria in compliance with the law extant at the time.


4. The March 1970 rating decision contained CUE pertaining to assignment of a noncompensable evaluation for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound; a 10 percent evaluation is warranted from December 16, 1969. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 4.20, 4.27, 4.71a, Diagnostic Codes 5155 and 5223 (1970); 38 C.F.R. § 3.105(a) (2010).


The Veteran contends that the March 1970 rating decision contains CUE because the RO, in assigning an evaluation for the newly service connected right hand disability, did not properly identify the Diagnostic Code applied or the criteria used in assigning an evaluation and, further, applied an incorrect standard.

Disability evaluations are determined by the application of the facts presented

to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Regulations extant at the time of the decision provided, as they do now, that when an unlisted disability is encountered, a Diagnostic Code is "built" by using the first two digits of the group of Codes assigned to the most closely associated body system and adding "99" to identify the rating as one by analogy. Such general Codes were intended to be combined with a Code for a specific listed condition to clearly identify the actual criteria applied, as in "5299-5155." 38 C.F.R. §§ 4.20, 4.27 (1970).

The Codesheet associated with the March 1970 rating lists the right hand disability under Code 5299 only. There is no indication of which Code was relied upon by analogy to assign the noncompensable evaluation, nor are any criteria listed in the discussion narrative of the rating decision. The Board must therefore conclude that the RO made an independent judgment, without regard to any objective standard or the Rating Schedule, as to how disabling the Veteran's right hand disability was.

As there is no indication that the Rating Schedule was applied, as was required by law and regulation, the Board has no choice but to find that the assignment of a noncompensable evaluation was CUE. This is not merely disagreement with the weighing of evidence or evaluation of facts; the RO cannot be found to have actually applied the law as required. Importantly, this finding means that the Board is assigning the initial evaluation of the right hand disability without regard to that assigned by the RO in 1970; that decision, in the absence of an objective standard or criteria, is entitled to no deference.

At the time of the March 1970 rating decision and under current regulations, the rating schedule provided a 10 percent evaluation for amputation of the ring finger without metacarpal resection, at the proximal interphalangeal (PIP) joint or proximal thereto. A 20 percent evaluation was assigned for metacarpal resection with more than half the bone lost. 38 C.F.R. § 4.71a, Code 5155 (1970). Other Codes provided evaluations for impairment of combinations of fingers, however, they are not applicable here. Although the ring and middle fingers were affected by the shrapnel wound of the right hand, the limitation of motion of the middle finger was noted by doctors in 1969 and 1970 to be limited to a loss of 10 degrees motion at the tip of the finger. The Veteran could still make a fist, meaning his middle finger could move to within one inch of the palm. By regulation, this was not considered a disability. 38 C.F.R. § 4.71a, Codes 5220 to 5223, Note (a) (1970).

Medical evidence of record at the time of the 1970 rating decision, including service treatment records and a February 1970 VA examination, demonstrated that the Veteran had sustained a traumatic amputation of the distal phalange of the right ring finger. In other words, the tip of the ring finger from the last joint to the tip was removed. In May 1969, the Veteran complained of pain in the amputation stump, and a revision of the amputation stump was performed; the VA examiner referred to this as a severing of the affected nerve. The in-service doctor stated that the amputation site, prior to revision was at the "proximal portion of the distal" phalange. In 1970, the level was described as "through the distal interphalangeal [DIP] joint area." Subsequent medical records and examinations refer to a missing distal phalange.

A 10 percent evaluation is warranted under Code 5155, for the partial amputation of the right ring finger. 38 C.F.R. § 4.71a, Code 5155 (1970). The physical descriptions of the amputation indicate that, although the site was generally in the area of the DIP, and not PIP joint, the initial injury, surgical repair, and subsequent revision were to the proximal side of the DIP joint. The actual amputation site appears to be between the DIP and PIP joints. Resolving all reasonable doubt in favor of the Veteran, the disability picture presented most closely approximates that of amputation at the PIP joint as all the evidence clearly reflects that some portion of the proximal phalange was affected by the injury and treatment.


The claim of CUE in a March 1970 RO decision which denied entitlement to a compensable rating for the award of service connection for amputation, terminal interphalangeal joint, right ring finger and limitation of extension to 10 degrees distal interphalangeal joint, right middle finger, residuals of shell fragment wound is granted, and a 10 percent evaluation is assigned effective from December 16, 1969.

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