tdiu Pr - Check This Out - Smc/s

[carlie]

pr and others,

This is quite a cue case I think I've found here - good for this vet that kept fighting.

I think there maybe some info here for you on the old M21-1 instruction in relationship to

SMS/S and disability that is independently ratable (for the plus 60 percent), that goes back to your

time frame.

Hope something here is helpful - if not - it's still a great read.

http://www.va.gov/ve...es1/0008627.txt

Citation Nr: 0008627

Decision Date: 03/31/00 Archive Date: 04/04/00

DOCKET NO. 97-10 859 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Los

Angeles, California

THE ISSUE

Entitlement to an effective date prior to October 27, 1995,

for an increase in special monthly compensation, including

the issue of whether a February 1973 rating decision was

clearly and unmistakably erroneous in denying entitlement to

special monthly compensation in excess of that specified in

38 U.S.C.A. § 1114(k) (West 1991) (formerly 38 U.S.C.

§ 314(k) (1970)).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel

INTRODUCTION

The veteran had active duty from January 1969 to December

1970. These matters come to the Board of Veterans' Appeals

(Board) from a December 1996 rating decision of the

Department of Veterans Affairs (VA) Regional Office (RO). In

that rating decision the RO granted special monthly

compensation for the loss of use of both hands pursuant to

38 U.S.C.A. § 1114(m) and increased the special monthly

compensation to the next higher level, payable at the rate

specified in 38 U.S.C.A. § 1114(n), based on additional

service-connected disabilities rated as 100 percent or more

disabling. The RO established the effective date for the

increase in the special monthly compensation as August 9,

1996. The veteran perfected an appeal of that decision in

terms of the RO's failure to grant special monthly

compensation at the higher rate payable pursuant to

38 U.S.C.A. § 1114(o), and the effective date established for

the increase in special monthly compensation.

In an August 1997 rating decision the RO revised the

effective date for the increase in special monthly

compensation to October 27, 1995. The veteran contends that

he is entitled to an effective date in 1972 for the increase

in the special monthly compensation. The Board finds,

therefore, that the issue of the effective date for the

increase in the special monthly compensation remains in

contention. See Fenderson v. West, 12 Vet. App. 119 (1999)

(a claim remains in controversy if less than the maximum

benefit is awarded).

The veteran's appeals were previously before the Board in

March 1999, at which time the Board denied entitlement to

special monthly compensation at the higher rate payable

pursuant to 38 U.S.C.A. § 1114(o), and denied entitlement to

an effective date prior to October 27, 1995, for the grant of

special monthly compensation at the rate specified in

38 U.S.C.A. § 1114(n). The veteran appealed the Board's

March 1999 denial of increased special monthly compensation

to the Court of Appeals for Veterans Claims (formerly the

Court of Veterans Appeals) (Court) and, as the result of a

stipulated agreement between the parties, in an October 1999

order the Court dismissed the appeal.

In the March 1999 decision the Board also remanded to the RO

the issue of entitlement to an effective date prior to

October 27, 1995, for the grant of special monthly

compensation at the rate payable pursuant to 38 U.S.C.A.

§ 1114(s). In a November 1999 supplemental statement of the

case the RO found that a February 1973 rating decision was

not clearly and unmistakably erroneous in denying entitlement

to special monthly compensation in excess of that payable

pursuant to 38 U.S.C.A. § 1114(k), and denied entitlement to

special monthly compensation at the rate payable pursuant to

38 U.S.C.A. § 1114(s) effective January 1, 1972. The issue

of the veteran's entitlement to an effective date prior to

October 27, 1995, for an increase in special monthly

compensation beyond that payable pursuant to 38 U.S.C.A.

§ 1114(k) has been returned to the Board.

FINDINGS OF FACT

1. In December 1970 the veteran submitted a claim for VA

compensation for all of the burn residuals resulting from a

May 1970 in-service injury, and that claim remained pending

until February 1974.

2. In a February 1973 rating decision the RO assigned a

70 percent disability rating for loss of use of the right

hand; a 50 percent rating for severe burns of the face,

eyelids, and ears; a 40 percent rating for burns of the left

hand; a 10 percent rating for defective vision due to burns;

and a noncompensable rating for burn scars to the left axilla

and thorax; and granted entitlement to special monthly

compensation pursuant to 38 U.S.C.A. § 1114(k) for the loss

of use of the right hand. The February 1973 rating decision

did not become final.

3. In a February 1974 rating decision the RO denied

entitlement to special monthly compensation at the rate

payable pursuant to 38 U.S.C.A. § 1114(s) for having a single

disability rated at 100 percent and additional disabilities

independently ratable at 60 percent.

4. The February 1974 rating decision was clearly and

unmistakably erroneous in failing to establish service

connection and assign a 40 percent rating for third degree

burns to the back and thorax, a 40 percent rating for burn

scars to the left arm, a 40 percent rating for burn scars to

the right arm, and a 30 percent rating for third degree burn

scars to the left thigh, with all ratings effective January

1, 1972.

5. In accordance with the law in effect in February 1973,

the combined disability ratings for the right and left upper

extremities constitute a single service-connected disability

rated at 100 percent, and the additional disabilities of the

head and face, back and thorax, and left thigh are

independently ratable at 60 percent or more.

6. The February 1973 rating decision was clearly and

unmistakably erroneous in failing to grant entitlement to

special monthly compensation at the rate payable pursuant to

38 U.S.C.A. § 1114(s) for having a single service-connected

disability rated at 100 percent and additional service-

connected disabilities independently ratable at 60 percent.

CONCLUSION OF LAW

The veteran is entitled to an effective date of January 1,

1972, for the grant of special monthly compensation pursuant

to 38 U.S.C.A. § 1114(s) (formerly 38 U.S.C.A. § 314(s)) for

having a single service-connected disability rated at

100 percent and additional service-connected disabilities

independently ratable at 60 percent. 38 U.S.C. § 4005©

(1970), 38 U.S.C.A. §§ 5109A, 5110(a) and (b) (West 1991);

38 C.F.R. §§ 4.16, 19.153 (1972), 38 C.F.R. § 3.400(k)

(1999); Veterans' Benefit Administration Manual M21-1,

Paragraph 50.38 (June 25, 1965).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

The veteran's service medical records show that in May 1970

he was injured in a helicopter crash, resulting in second and

third degree burns with 55 percent skin loss over his body.

He had second degree burns on the face, anterior neck, both

upper and lower extremities, and the posterior thorax. The

burns to the arms, chest, back and face were characterized as

severe. He had third degree burns involving the left

buttock, the forearms, and both ears. He also suffered a

corneal burn to the right eye. Following the initial injury

he was hospitalized for 14 months, during which he underwent

extensive treatment, including multiple skin grafts. The

trunk and lower extremities were used as grafting sites. He

experienced considerable weight loss and muscle wasting, and

was noted to have severe contractures in the fingers of both

hands, stiffening in the wrists and elbows of both arms,

facial deformities secondary to scar formation, cartilagineus

tissue loss in the ears, and contractures of the scars about

the mouth and eyes.

The veteran claimed entitlement to VA compensation for the

residuals of the May 1970 accident in December 1970.

Examination in May 1971 revealed that parts of both external

ears were missing, and that he had alopecia, flexion

contractures of the 4th and 5th digits on the left hand,

flexion contracture of the 3rd digit on the right hand, a

flexion contracture of the left anterior axilla, a corneal

burn injury, burn scars over the face and upper body, and

ectropion of the lower eyelids.

In a June 1971 rating decision the RO granted service

connection for multiple burns of the face, neck, upper

extremities, and posterior thorax and alopecia and assigned a

100 percent pre-stabilization disability rating for the

disorders pursuant to 38 C.F.R. § 4.28.

A June 1971 VA hospital summary shows that on admission in

November 1970 the veteran had healing burns over the face and

scalp; bilateral lower ectropion; partial absence of the

auricle, bilateral; burn scars over most of the anterior and

posterior chest; contractures of both wrists; contracture of

the left anterior axillary fold; and flexion contractures of

the four digits of the right hand and the fourth and fifth

digits of the left hand. As a result of the burn injuries

the veteran continued to undergo debridement of the burn

wounds and skin grafts to the arms, the legs, the scalp, the

left shoulder, and the chest. He also had release of the

contractures of the 2nd, 3rd, 4th, and 5th digits of the right

hand and release of the ectropion of both lower eyelids. On

discharge from the hospital he was scheduled for additional

surgeries to release contractures of the 4th and 5th digits on

the left hand, reconstruction of the commissure of the mouth,

and release of the contracture of the left shoulder.

A VA examination of the right hand in October 1971 revealed

flexion contractures in the fingers of the right hand, with

movement of the metacarpophalangeal (MCP) joints to

90 degrees, movement of the proximal interphalangeal (PIP)

joints to 20 degrees, and ankylosis of the distal

interphalangeal (DIP) joints at 90 degrees. There was also

severe flattening of the muscles in the palm of the right

hand so that the right hand resembled an "ape" hand, with

55 percent of the right hand covered by a skin graft. The

thumb could be extended to 30 degrees and abducted to

40 degrees.

Examination of the left hand showed that the PIP joint of the

left little finger was fixed at 95 degrees of flexion and the

PIP joint of the left ring finger was fixed at 130 degrees of

flexion. The DIP joints of the left little and ring fingers

were fixed at 85 and 60 degrees, respectively. The motion of

the thumb was limited to zero degrees of extension and

20 degrees of abduction. No abnormalities of the left index

and middle fingers were noted. Skin grafts covered

50 percent of the left hand, and the left hand also appeared

as an "ape" hand, due to the absence of the muscles in the

palm of the hand.

Scarring across the left anterior chest and axilla to the

left arm resulted in the left shoulder being fixed at

150 degrees of abduction, with no further movement possible.

The veteran also had marked burn contractures of the entire

face, residual scarring over the cornea of the right eye,

moderate ectropion of both lower eyelids, partial absence of

both external ears, and visual acuity of 20/40 in the right

eye and 20/20 in the left eye. The ophthalmology examiner

characterized the visual deficit due to the corneal scarring

as moderate to marked, and marked cosmetic disability due to

the damage to the eyelids.

In a December 1971 rating decision the RO terminated the

100 percent pre-stabilization rating and granted service

connection and separate disability ratings for the following:

severe burns of the face, eyelids, and ears, rated as

50 percent disabling; residuals of third-degree burns of the

right hand, rated as 50 percent disabling; residuals of burns

of the left hand, rated as 20 percent disabling; defective

vision due to burns, rated as 10 percent disabling; and

residuals of burns to the left axilla and left thorax, rated

as noncompensable. The veteran was also granted a total

disability rating based on individual unemployability. The

RO determined that the veteran had not lost the use of any

extremity or his vision, and denied entitlement to special

monthly compensation and an automobile allowance.

The veteran appealed the denial of entitlement to an

automobile allowance, and was provided an additional

examination in February 1973. The report of the February

1973 VA examination shows that he reported having pain and a

loss of dexterity in his fingers in cold weather, and that

his knees ached if he walked a long distance. He indicated

that he could bend only the MCP joints in the right hand, and

that the little and ring fingers on the left hand were

frozen. He reported having limited movement of the thumb on

the left hand. He also reported that he was able to drive a

car and that he could button his clothing, but that he was

unable to carry a suitcase because he lacked the strength and

could not hold onto the handle with either hand.

On examination, he was able to walk without difficulty. The

examiner noted that he had extensive healed scars with

disfigurement resulting from the burns involving the face,

the upper extremities, the trunk, and, to a lesser extent,

the lower extremities. The examiner provided photographs

documenting the extent of the scarring. Those photographs

show that the scarring on the right upper extremity extended

from the fingers to the right axilla, including the entire

circumference of the upper extremity, and that the scarring

on the left upper extremity extended from the fingers to the

upper part of the left shoulder and included the entire

circumference of the left arm. In addition, the veteran had

scarring over the left third of the back, from shoulder to

waist, extending around the left side, and including the left

side of the abdomen from the nipple to the waist,

approximately one-fourth the area of the abdomen and chest.

The burn scars covered the front and sides of the neck and

throat, the entire face, and the front part of the scalp.

Parts of both external ears were missing, and he had

noticeable deformity of the mouth, nose, and both eyes. He

also had a burn scar covering half the anterior portion of

the left thigh from the groin to the knee, and what appears

to be skin graft scars on one-third the anterior portion of

the left thigh.

The examiner found that the veteran had essentially free

motion in the wrists, the forearms, the elbows, and the

shoulders. Examination of the lower extremities revealed

full movement of the knee joints, with no instability, and

some atrophy of the left thigh.

Examination of the right hand revealed free motion at the MCP

joints and the interphalangeal joint of the thumb. The DIP

and PIP joints of all the fingers of the right hand were

ankylosed at varying degrees of flexion, including 90 degrees

of ankylosis of the DIP joints of the index, middle, and ring

fingers. The veteran could oppose the tip of the thumb to

the tips of the fingers, but lacked free abduction of the

thumb. He was unable to make a fist with the right hand, and

on flexion the fingers lacked one inch of reaching the palm.

The grip strength in the right hand was described as quite

weak, with generalized atrophy of the muscles of the hand.

Examination of the left hand showed a prominent deformity of

the thumb, with the musculature at the thenar eminence

essentially missing, residual scarring, subluxation of the

MCP joint, and very limited motion of the thumb. The

function of the index and middle fingers was described as

good, with practically free motion, but the ring and little

fingers were ankylosed in complete flexion and without

function. The palm was also prominently atrophied, including

the hypothenar eminence and the thenar musculature.

In a February 1973 rating decision the RO increased the

disability rating for the right hand from 50 to 70 percent

and increased the disability rating for the left hand from 20

to 40 percent. In addition, the RO determined that the

veteran had lost the use of the right hand, and special

monthly compensation was granted at the rate payable pursuant

to 38 U.S.C.A. § 1114(k) for the loss of use of one hand.

The increased ratings and the special monthly compensation

were effective January 1, 1972, on termination of the

100 percent pre-stabilization rating previously assigned in

accordance with 38 C.F.R. § 4.28. The RO also granted an

automobile allowance, based on the permanent loss of use of

the right hand.

In March 1973 the RO notified the veteran that his request

for an automobile allowance had been approved, but did not

notify him of the increased ratings or the special monthly

compensation.

A January 1974 VA medical report, which was prepared in

conjunction with the veteran's claim of entitlement to

special monthly compensation, indicates that he lacked grip

strength and fine motor movement in the hands, but that he

was able to feed, bathe, and clothe himself, with no arm

limitations. He complained of pain in the knees and had

scars on the lower extremities, but he had full movement of

the joints and normal weight bearing and balance. The

examiner found no limitations in the veteran's ability to

perform self-care or to ambulate.

Based on this evidence, in a February 1974 rating decision

the RO denied entitlement to special monthly compensation

based on the need for regular aid and attendance, for being

housebound, or for having one permanent disability rated at

100 percent and additional disabilities rated at 60 percent.

The veteran submitted a notice of disagreement with this

decision in April 1974, and in July 1974 he asserted that he

was entitled to the rate specified in 38 U.S.C.A. § 1114(s)

because the scars on his legs had not yet been rated.

The report of a September 1974 examination shows that he

complained of pain and difficulty walking due to skin

grafting about both hips and both knees. Examination

revealed that the areas of the legs from the knees to the

ankles were free of burns, but that the areas had been used

as donor skin sites. Areas over the patellae of both knees

and the anterior-lateral aspect of both thighs had been skin

grafted, and undamaged areas of the thighs had also been used

as skin donor sites. The range of motion of the hips and

knees was described as good, with pain at the extremes of

motion. Examination of the left hand showed the deformities

that have been previously described. The examiner also

provided photographs of the left hand and both lower

extremities. Those photographs document the presence of

scarring over the entire anterior surface of both thighs and

both knees.

In a November 1974 rating decision the RO granted service

connection for burn scars of the right and left lower

extremities, and assigned 10 percent ratings for each

extremity. The RO also confirmed the denial of special

monthly compensation. The RO issued a statement of the case

to the veteran in November 1974, but he did not file a

substantive appeal in response to the statement of the case,

and the February 1974 and November 1974 decisions in which

special monthly compensation was denied became final.

In August 1992 the veteran claimed entitlement to service

connection for orthopedic problems, which he claimed resulted

from the burn scars. Following additional VA examinations,

in a June 1993 rating decision the RO granted service

connection for partial ankylosis of the left and right

shoulders, each rated as 10 percent disabling, effective in

August 1992.

In October 1995 the veteran claimed entitlement to service

connection for a bilateral elbow disorder, and claimed

increased ratings for the scars on his arms, back, left leg,

and left thigh. Following an additional examination, in a

March 1996 rating decision the RO granted service connection

for burn scars on the back, and assigned a 20 percent rating

for the disorder; granted service connection for burn scars

of the bilateral arms, and assigned a 10 percent rating for

each arm; and granted service connection for burn scars of

the bilateral knees, rated as noncompensable.

In a May 1996 statement the veteran expressed disagreement

with the March 1996 decision.

In a June 1996 medical report the veteran's VA physician

provided a detailed description and drawings of the burn

scars resulting from the in-service injury. He provided an

estimate of the areas of coverage on the left and right

hands, the left and right upper arms, the left and right

forearms, the anterior and posterior neck, the left chest,

the left side of the back, the right side of the back, the

left anterior thigh, the left knee, the right knee, and the

right posterior calf.

In a July 1996 rating decision the RO increased the rate of

special monthly compensation to the level payable for a

veteran with one disability rated as totally disabling and

having additional disabilities that were rated as 60 percent

or more disabling, in accordance with 38 U.S.C.A. § 1114(s).

The increase in the special monthly compensation was based on

an opinion from the VA General Counsel in February 1994

holding that a total disability rating based on individual

unemployability should be considered a 100 percent disability

rating for the purposes of 38 U.S.C.A. § 1114(s). VAOPGCPREC

2-94. The effective date of the grant of special monthly

compensation was in October 1994, one year prior to the

veteran's October 1995 claim for an increased rating.

38 C.F.R. § 3.114.

In August 1996 the veteran claimed entitlement to an increase

in the rate of special monthly compensation based on the loss

of use of the left hand. In a September 1996 rating

decision, based on an August 1996 medical report, the RO

determined that the veteran had lost the use of the left

hand, as well as the previously-adjudicated right hand, and

increased the disability rating for the combined loss of use

of both hands to 100 percent. The RO also increased the rate

of special monthly compensation to the level for the loss of

use of both upper extremities, below the elbow level,

pursuant to 38 U.S.C.A. § 1114(m), with an additional

intermediate increase in the special monthly compensation for

having additional disabilities rated as 50 percent disabling

in accordance with 38 C.F.R. § 3.350(f)(3). The effective

date of the increased rating and increase in the special

monthly compensation was in August 1996. Adjudication of the

issue of increased disability ratings for the burn scars on

the remainder of the veteran's body, which he contended

should be rated higher, was deferred pending an additional VA

examination.

Following the September 1996 rating decision and notice to

the veteran, in September 1996 he withdrew his appeal of the

March 1996 rating decision.

The veteran was provided a VA examination in October 1996 for

the purpose of documenting the extent and severity of the

burn scars. In conjunction with the examination he

complained of facial disfigurement, pain and stiffness in his

elbows and knees, muscle spasms in the back and neck, and a

loss of manual dexterity. The examiner documented the extent

of the third-degree scarring on the head, neck, chest, back,

and extremities, covering 65 percent of his body area. The

examiner also provided photographs documenting the extent and

severity of the scarring. With the exception of a more

detailed photograph documenting the extent of the scarring on

the right thigh, right side of the chest and abdomen, and the

back of the neck, those photographs are essentially identical

to the photographs previously provided.

In a December 1996 rating decision the RO increased the

disability rating for severe burns of the face, eyelids, and

ears from 50 to 80 percent; increased the rating for severe

burns of the back and thorax from 20 to 30 percent; and

increased the rating for burn scars of the right lower

extremity from 10 to 30 percent. The RO also increased the

special monthly compensation to a full step increase over and

above the rate payable for the loss of use of both hands,

payable pursuant to 38 U.S.C.A. § 1114(m), for having

additional disabilities rated as 100 percent disabling

pursuant to 38 C.F.R. § 3.350(f)(4). With the increase

granted in December 1996, the rate of special monthly

compensation was determined to be equivalent to the rate

payable pursuant to 38 U.S.C.A. § 1114(n). The effective

date of the increased ratings and the increase in the special

monthly compensation was in August 1996. The veteran

appealed the December 1996 decision.

In his February 1997 notice of disagreement the veteran

stated that he was entitled to higher disability ratings for

the burn scars, based on the extent of the scarring

documented in the VA examinations. He also claimed that the

extent of the scarring warranted an increase in his special

monthly compensation to the maximum rate payable in

accordance with 38 U.S.C.A. § 1114(o). He further stated

that the effective date of the increase in the special

monthly compensation was incorrect, but he did not indicate

what effective date he believed to be appropriate. In his

March 1997 substantive appeal he made reference only to the

effective date.

In an August 1997 rating decision, the RO revised the

effective date for the increase in the special monthly

compensation payable at the 38 U.S.C.A. § 1114(n) rate from

August 1996 to October 27, 1995, the date on which the

veteran initially claimed entitlement to an increased rating.

In an October 1997 substantive appeal the veteran expressed

disagreement with the effective date assigned in the August

1997 rating decision, but he did not define the correct

effective date.

In a June 1998 rating decision the RO granted service

connection for post-traumatic stress disorder, rated as

70 percent disabling; tinnitus, rated as 10 percent

disabling; limited motion of the right and left elbows, rated

as 30 and 20 percent disabling, respectively; and increased

the disability ratings for right and left shoulder ankylosis

from 10 to 30 and 20 percent, respectively.

In July 1998 statements the veteran continued to disagree

with the disability ratings assigned for the burn scars to

each arm, the left knee, the right knee, the lower eye lid

ectropion, and the neck. He claimed that the disability

ratings should be retroactive to 1972 because clear and

unmistakable error occurred in the prior rating decisions, in

that the medical evidence showed that he had scars over half

his body, but that the RO had failed to assign the

appropriate disability ratings for the burn scars.

In a September 1998 rating decision the RO increased the

disability ratings for the burn scars to the following areas:

each arm was increased from 10 to 40 percent; the left thigh

was increased from 20 to 30 percent; the right knee was

increased from zero to 10 percent; the left knee was

increased from zero to 20 percent; and the back and thorax

were increased from 30 to 40 percent. The RO also determined

that clear and unmistakable error had not occurred in the

February 1973 rating decision for failure to assign the

proper disability ratings for the burn scars, but established

an effective date of January 1, 1972, for the increased

ratings for the burn scars. The RO found that clear and

unmistakable error had not occurred because increasing the

disability ratings for the burn scars would have no impact on

the combined disability rating, which had been determined to

be 100 percent since the veteran's separation from service.

During a January 1999 hearing before the undersigned, the

veteran asserted that the effective date for the previously

awarded increase in his special monthly compensation should

be retroactive to 1972 because he had a 100 percent rating

for loss of use of his hands, and additional disabilities

rated as 100 percent or more disabling.

II. Laws and Regulations

Except as otherwise provided, the effective date of an award

based on an original claim or a claim for an increase shall

be fixed in accordance with the facts found, but shall not be

earlier than the date of receipt of the claim. 38 U.S.C.A.

§ 5110(a) and (b)(2). The effective date of service

connection based on a finding that a prior decision contained

clear and unmistakable error is the date from which benefits

would have been payable if the corrected decision had been

made on the date of the reversed decision. 38 C.F.R.

§ 3.400(k).

A decision of the RO becomes final and binding and is not

subject to revision on the same factual basis in the absence

of clear and unmistakable error. Where evidence establishes

such error, the prior decision will be reversed or amended.

38 U.S.C. § 4005© (1970); 38 C.F.R. § 19.153 (1972); now

codified at 38 U.S.C.A. §§ 5109A, 7105; 38 C.F.R. §§ 3.105,

20.1103.

The determination of whether a decision was based on clear

and unmistakable error requires a three-pronged analysis: 1)

either the correct facts, as they were known at the time,

were not before the adjudicator, rather than a disagreement

on how the facts were interpreted, or that the pertinent

statutory or regulatory provisions were incorrectly applied;

2) the error must be UN-debatable, and of the type that, had

it not been made, would have manifestly changed the outcome

of the case at the time it was made; 3) the determination of

whether a decision contained clear and unmistakable error

must be based on the record and law that existed at the time

the decision was rendered. Damrel v. Brown, 6 Vet. App. 242

(1994), citing Russell v. Principi, 3 Vet. App. 310 (1992).

In order to raise a valid claim of clear and unmistakable

error, the veteran must specifically indicate what the error

is and, unless clear on its face, he must also provide

persuasive reasons why the decision would have been

manifestly different but for the error. See Fugo v. Brown,

6 Vet. App. 40, 44 (1993), en banc review denied Feb. 3, 1994

(per curium); see also Baldwin v. West, 13 Vet. App. 1, 7

1999) (if it is not absolutely clear that a different result

would have ensued, the error complained of cannot be clear

and unmistakable).

If the veteran fails to identify the specific error or does

not show, assuming his allegations to be true, that the

outcome of the case would have been manifestly different, the

claim that a prior decision was based on clear and

unmistakable error should be denied as a matter of law. See

Luallen v. Brown, 8 Vet. App. 92, 96 (1995). If the veteran

raises a valid claim of clear and unmistakable error, the

question of whether a given decision was based on clear and

unmistakable error is to be determined based on the facts of

the case. See Rivers v. Gober, 10 Vet. App. 469 (1997).

According to the regulation in effect in February 1973,

special monthly compensation was payable at a specified rate

if the veteran had a single service-connected disability

rated at 100 percent under regular schedular criteria and he

had additional service-connected disability or disabilities

independently ratable at 60 percent, separate and distinct

from the 100 percent service-connected disability and

involving different anatomical segments or bodily functions.

38 U.S.C. § 314(s) (1970); 38 C.F.R. § 3.350(i) (1972).

The provisions of the Veterans Benefit Administration Manual

M21-1 (Manual M21-1) showed that in defining "single

disability," the provisions of Paragraph No. 16 of the rating

schedule applied. The Manual M21-1 also showed that the

independent 60 percent or more disability was determined

based on a regular evaluation based on the rating schedule.

The disabilities of 60 percent or more had to be separate and

distinct from the single 100 percent disability and had to

involve separate anatomical segments or bodily systems.

Although the rating schedule provided that separate

evaluations be made for each diagnosis relating to a single

bodily system, when such diagnoses covered a single

functional entity and were all parts of a common disability,

they could not be considered as being independently ratable.

Within these limitations, however, the fact that a

100 percent disability and an independent 60 percent

disability resulted from a common etiological agent, such as

single injury, did not preclude entitlement. Manual M21-1,

Paragraph 50.38 (June 25, 1965). The Court has held that

substantive rules contained in Manual

21-1 are binding on VA. See Montalvo v. Brown, 7 Vet. App.

312 (1995).

Paragraph 16 of the rating schedule indicated that

disabilities of one or both upper extremities, one or both

lower extremities, disabilities resulting from common

etiology or a single accident, disabilities affecting a

single body system, or multiple injuries incurred in action

were considered to be a single disability. 38 C.F.R. § 4.16

(1972).

III. Analysis

The Board finds that in his December 1970 application for VA

compensation the veteran claimed entitlement for all of the

residuals resulting from the May 1970 helicopter accident.

The medical evidence of record at that time documented the

extent of the burn scars, but the RO did not adjudicate all

of the service-connected injuries. The Board also finds,

therefore, that the December 1970 claim remained opened in

terms of the burn scars for which service connection was

later established. See Jones v. West, 12 Vet. App. 98 (1998)

(an un-adjudicated claim remains pending for the purpose of

establishing an effective date of entitlement).

Because the veteran was not notified of the ratings assigned

in the February 1973 rating decision, that decision did not

become final in terms of the applicable ratings and his

entitlement to special monthly compensation. Best v. Brown,

10 Vet. App. 322 (1997). The veteran was, however, notified

of the February 1974 denial of entitlement to an increase in

the special monthly compensation. Although he filed a notice

of disagreement in response to that decision, he did not file

a substantive appeal following the issuance of the statement

of the case. The February 1974 decision is, therefore,

final. 38 U.S.C. § 4005©; 38 C.F.R. § 19.153.

The Board finds that the veteran has raised a valid claim of

clear and unmistakable error in the February 1974 rating

decision. He asserted that evidence of the extent of his

scarring was before the rating agency, but that the

regulations were not properly applied in granting service

connection and assigning ratings for all of the documented

scarring. Although the grant of service connection and the

assignment of individual ratings would have no impact on his

overall disability rating, which was 100 percent, he has

shown that the outcome of the case would have been manifestly

different, in that entitlement to special monthly

compensation based on the provisions of 38 U.S.C. § 314(s)

would have been warranted had all of his documented injuries

been properly rated. Damrel, 6 Vet. App. at 242.

The Board also finds that the scope of the veteran's appeal

of the effective date assigned for the special monthly

compensation awarded in December 1996 includes the

subordinate issue of whether the prior rating decisions in

which entitlement to special monthly compensation was denied

were based on clear and unmistakable error. Although the

veteran did not specifically raise the issue of clear and

unmistakable error in his February 1997 notice of

disagreement, he clarified the scope of his appeal in

statements submitted in July 1998. In those statements he

asserted that he was entitled to an effective date in 1972

because the prior decisions were clearly and unmistakably

erroneous. In the September 1998 rating decision the RO

expressly addressed the issue of clear and unmistakable error

in the February 1973 rating decision, and provided the

veteran the regulation pertaining to clear and unmistakable

error in the November 1999 supplemental statement of the

case. The Board finds, therefore, that it has jurisdiction

of the issue of whether the prior decisions were based on

clear and unmistakable error. See Buckley v. West,

12 Vet. App. 76 (1998) (the Board has jurisdiction over all

issues that are appropriately identified from the radix of

the notice of disagreement); see also Bernard v Brown, 4 Vet.

App. 384 (1993) (the Board is precluded from considering

issues not previously addressed by the RO).

The Board further finds that the February 1974 rating

decision was clearly and unmistakably erroneous for failing

to grant service connection and assign disability ratings for

all of the scarring that resulted from the burns incurred in

the May 1970 helicopter crash. The medical evidence of

record when the February 1974 decision was rendered clearly

showed that in the crash the veteran incurred severe burns to

the arms, chest, back, face, left buttock, the forearms, and

both ears. The trunk and lower extremities were also used as

grafting sites. See Crippen v. Brown, 9 Vet. App. 412, 421

(1996) (the failure to consider highly probative evidence

violates 38 C.F.R. § 3.303(a), which requires that an

adjudication be based on all of the evidence of record).

The photographs taken during the February 1973 examination

documented that the scarring on the right upper extremity

extended from the fingers to the right axilla, including the

entire circumference of the upper extremity, and that the

scarring on the left upper extremity extended from the

fingers to the upper part of the left shoulder and included

the entire circumference of the left arm. In addition the

veteran had a scar covering the left third of the back, from

shoulder to waist, extending around the left side, and

including the left side of the abdomen from the nipple to the

waist, approximately one-fourth the area of the abdomen and

chest. The burn scars covered the front and sides of the

neck, the entire face, and the front part of the scalp.

Parts of both external ears were missing, and he had

noticeable deformity of the mouth, nose, and both eyes. He

also had a burn scar covering half the anterior portion of

the left thigh from the groin to the knee, and what appears

to be skin graft scars on one-third the anterior portion of

the left thigh.

The Board notes that the rating criteria for disfiguring

scars of the head, face, or neck and second and third degree

burn scars were the same in February 1973 as shown in the

rating schedule in September 1998. 38 C.F.R. § 4.118,

Diagnostic Codes 7800-7802 (1972) and (1998). In the

September 1998 rating decision the RO determined that the

scarring of each arm warranted a 40 percent rating; that the

scars on the left thigh warranted a 30 percent rating; that

the scar on the right knee warranted a 10 percent rating;

that the scar on the left knee warranted a 20 percent rating;

and that the scarring of the back and thorax supported a

40 percent rating. The increased ratings for all of the burn

scars were made effective January 1, 1972, following the

termination of the 100 percent pre-stabilization rating

previously assigned.

In accordance with 38 C.F.R. § 4.16 (1972), for the purpose

of determining whether the veteran had a "single" disability

rated at 100 percent, the disabilities of one or both upper

extremities constituted a "single" disability, including the

bilateral factor. The effect of the September 1998 rating

decision was to establish ratings for the right upper

extremity of 70 percent for loss of use of the right hand and

40 percent for the burn scars. The ratings for the left

upper extremity are 40 percent for the flexion contractures

of the hand and 40 percent for the scarring. After combining

these percentages pursuant to 38 C.F.R. § 4.25, the bilateral

factor of 10 percent is applied. The single combined rating

for the upper extremities, therefore, is 100 percent.

In addition to the ratings assigned for the upper

extremities, the evidence of record when the February 1974

decision was rendered showed that the veteran had scarring of

the face and head, back, thorax, and both thighs, and that he

had defective vision. The head and facial scarring was rated

as 50 percent disabling and the defective vision was rated as

10 percent disabling in the February 1973 decision. In the

September 1998 rating decision the RO assigned a 40 percent

rating for the back and thorax scarring, and a 30 percent

rating for scars on the left thigh.

The RO in the September 1998 decision also granted service

connection and assigned ratings for additional disabilities.

The Board does not find, however, that the evidence of record

in February 1974 clearly established such entitlement so as

to have made the February 1974 decision clearly and

unmistakably erroneous as to those disabilities. Crippen,

9 Vet. App. at 421.

As the result of the September 1998 rating decision, the

combined rating for the disabilities that were documented in

February 1974 exceeds 60 percent. The disabilities are

independently ratable because they pertain to different

functional entities. Although they arose from a common

etiology, that restriction does not apply in determining

whether the disabilities are independently ratable for the

purpose of determining whether the veteran has additional

disabilities rated at 60 percent or more. Manual M21-1,

Paragraph 50.38.

The Board finds, therefore, that the evidence clearly shows

that effective January 1, 1972, the veteran had a "single"

service-connected disability rated at 100 percent, and

additional disabilities rated at 60 percent or higher.

Because there was compelling evidence of record establishing

that the veteran was entitled to the assigned ratings, the RO

committed clear and unmistakable error in failing to grant

service connection and assign the proper ratings. Crippen,

9 Vet. App. at 421. The RO also erred in failing to grant

special monthly compensation for having a single disability

rated at 100 percent and additional disabilities

independently rated at 60 percent. The Board has determined,

therefore, that the veteran is entitled to an effective date

of January 1, 1972, for the grant of special monthly

compensation at the rate payable pursuant to 38 U.S.C.A.

§ 1114(s) (formerly 38 U.S.C. § 314(s)).

ORDER

An effective date of January 1, 1972, is awarded for the

grant of special monthly compensation at the rate payable

pursuant to 38 U.S.C.A. § 1114(s), subject to the laws and

regulations pertaining to the payment of monetary benefits.

Mark D. Hindin

Member, Board of Veterans' Appeals

GO TO THE LINK FOR MORE INFO - FONT & CODE KEEPS MESSING UP.

carlie

Edited April 22, 2012 by carlie
font size and code

[Philip Rogers]

Thanks, Carlie!!! I've read it once and am confused already. Anytime they introduce all those dates, disabilities and percentages, I feel like I just got off a merry-go-round and am confused. I'll keep trying.

pr

[Teac]

I've read it very carefully... I think other than it being a very interesting case, and that it took the va a loooong time to grant the claim... that it doesn't apply to Philips situtation.

It didn't seem to address Philip's situtation one way or the other......in terms of how to count the 60% for SMC's.

[broncovet]

While I am not extremely familiar with PR's case, it does seem to address this issue in this paragraph, from the cited case:

........

"5. In accordance with the law in effect in February 1973,

the combined disability ratings for the right and left upper

extremities constitute a single service-connected disability

rated at 100 percent,"

end of case quote.

......Unless something changes, this court would allow a combined rating, from the same disability, to combine to 100% for SMC purposes.

[broncovet]

The case did NOT stipulate, however, whether those disabilities above 100 are combined or added, at least, prior to the laws in effect in 1973.

The date "disclaimer" may be important, here. Remember this is Cue, and that is why the effective date of the laws is important, because to be "CUE" the error has to be based on the laws at the time the error was committed.

This "date disclaimer" suggests the board is interpreting Bradley vs Peake very favorably to Veterans...of course, the higher courts could overturn this BUT...the VA cant appeal cases at the BVA level..only the Veteran can.

Edited April 23, 2012 by broncovet

[Teac]

The case did NOT stipulate, however, whether those disabilities above 100 are combined or added, at least, prior to the laws in effect in 1973.

The date "disclaimer" may be important, here. Remember this is Cue, and that is why the effective date of the laws is important, because to be "CUE" the error has to be based on the laws at the time the error was committed.

This "date disclaimer" suggests the board is interpreting Bradley vs Peake very favorably to Veterans...of course, the higher courts could overturn this BUT...the VA cant appeal cases at the BVA level..only the Veteran can.

Disclaimer?

I didn't see it that way.. the court is deciding a CUE claim .. it would have cited the date of the original claim in any case... However,

Based upon my research I agree that the BVA is deciding cases of SMC Housebound, very favorable to the veteran regardless of the date of the original claim....

[Pete53]

I was 100% effective Nov 1993 with agorophobia diagnosed by VA and outside medical Docs including SSD as of March 1991.

And yet they still say no.