Jump to content
  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  •  ad-free-subscription-002.jpeg     fund-the-site.jpg

  • Searches Community Forums, Blog and more

  • 0
Sign in to follow this  

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.

Share this post

Link to post
Share on other sites

0 answers to this question

Recommended Posts

There have been no answers to this question yet

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

  • Ads

  • Ad

  • Latest News
  • Our picks

    • I filed for my mitral valve regurgitation heart disease secondary to a service-connected condition on 7-30-18. It was granted on 8-30-18. Since I filed for this heart valve issue and was awarded, can I still file for hypertension ? I have been seeing comments that you should file for hypertension first and file for heart disease as a secondary. Can I file for hypertension as a secondary to my heart disease ? I am alittle confused on this matter.

    • How to Change the Theme - Look and Colors
      How to Change the Theme - Look and Colors
      • 5 replies
    • For Calculating Retro

      VA Disability Compensation Rates 2012 | 2011 | 2010-2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999

      Prior to 1999 check here https://www.hadit.com/va-disability-compensation-rates-historic-for-retro-calculation/
      • 0 replies
    • I am a 100% disabled veteran, At first I was super excited to find out I am getting retro pay for back benefits to 2006. But that was over 2 months ago. I been waiting and waiting and calling to ask them wheres my back pay. They first told me "one month" than I call again. The guy started reading a script of basically "we are malingering on paying you" type crap. I was wondering if there is any number I can call besides that 800-827-1000 number to inquire about my status. I don't know why its taken so long when there is specific information telling them from the judge that VA owes. 

      There was a remanded to see if I was eligible for IU (I get it now since 2014 im actually 90% with 10 of that been IU). I been on SS since 2004. Can Someone help me out? Thank you
      • 6 replies
    • You might have a 38 CFR 3.156 situation-

      meaning the VA might have considered your claim in 95/96 as "not well grounded" and failed to even get your STRs.Or they did get your STRs but never considered the specific entry you cited here.

      Lots of discussion under a search, of 38 CFR. 3.156 (a)(b) (c) ---here is a winner:



        • Thanks

Important Information

{terms] and Guidelines