# Henry v. Derwinski

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## Henry v. Derwinski, 2 Vet. App. 88 (1992) {#6727636}

*2 Vet. App. 88*

_Henry v. Derwinski, 2 Vet. App. 88, decided 1992-01-16._

HOLDAWAY, Associate Judge:
Appellant, William H. Henry, seeks review of a September 18, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) which denied an earlier effective date for a compensable rating for the veteran’s service-connected through-and-through gunshot wound. We affirm the Board’s decision.

Appellant served in the United States Army from September 1950 to June 1952. While in Korea, he was wounded by an unidentified projectile which entered the lower right side of his abdomen and exited his back close to the spine. His service medical records indicate only: SFW-WIA-Back Right side-1600. He received treatment in Korea and was returned to duty.

In 1967, after having problems on his job because of his back, appellant filed a claim with the Veterans’ Administration (now Department of Veterans Affairs) (VA) for compensation. A VA examination was performed. The 1967 doctor’s report states that appellant received a gunshot wound of the back in Korea and reported only a “well-healed, non-tender, 1 [inch] transverse skin scar in the right paravertebral lumbar region....” The VA Regional Office (RO) awarded appellant a 0% rating for a gunshot wound based on the service medical records and the doctor’s report stating that: “Medical records show that veteran sustained a shell fragment wound of back, right side....” Appellant did not appeal this rating decision.

In September 1988, appellant filed for an increase in compensation stating:

I want to claim an increase in compensation for my gunshot wound. The bullet that hit me went in on my right side and came out near my spine. I contend ... that this should be at a compensible [sic] evaluation since it is a through and through gunshot wound.

This claim was treated as a “reopened” claim and another VA exam was done. The examining doctor confirmed the through-and-through wound and muscle damage caused by the wound. On February 28, 1989, appellant was awarded a disability rating of 30% for residuals of a through-and-through gunshot wound, effective the date of the “reopened” claim. The RO found “no error ... on prior ratings in failing to identify the injury as a through and through.”

Appellant filed a Notice of Disagreement on August 2, 1989, claiming that the effective date should have been effective back to when he first filed a claim because the error in identifying the type of wound was made by the VA doctor who examined him in 1967. In a VA Form 1-9 filed in September 1989, appellant stated: “Since the wound was incurred in 1951 and entered and exited it was a through and through wound from day one.... The original rating was clearly and unmistakably in error-” (Emphasis in original.)

An informal hearing was held at which the hearing officer inspected the scars himself. The hearing officer affirmed the RO stating that “[t]he evidence we had when the 1967 rating was made basically showed a scar and normal function. The service records do not show a greater than slight wound.”

On September 18, 1990, the BVA issued a decision denying an earlier effective date stating:

As of the time that the rating agency granted service connection and assigned a noncompensable rating for a gunshot wound scar on the veteran’s back in 1967, the veteran had claimed only a back disability and no residuals of an abdominal wound had been discovered and reported. Accordingly, the Board cannot say that the rating agency committed clear and unmistakable error. An increased rating based upon additional disability claimed by the veteran and confirmed on official examination was made effective the date of receipt of the veteran’s claim. Since the pertinent criterion for determination of the proper effective date is the earliest date the evidence shows increased disability, and such evidence consists of the November 1988 examination by the VA, an earlier effective date is not warranted.

*90William H. Henry, BVA 90-32064 (Sept. 18, 1990). Appellant filed a timely appeal to this Court.

ANALYSIS

Appellant claims that there was “clear and unmistakable” error in the 1967 rating decision which assigned him a 0% rating for a scar resulting from a gunshot wound. He bases this claim on the fact that he had a “through and through wound from day one” and therefore, the mistake was made by the VA doctor who examined him.

“All questions in a matter which under [38 U.S.C. § 211(a)] is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary.” 38 U.S.C. § 7104(a) (formerly § 4004(a)). Un-appealed rating decisions are final once the time for appeal runs out. 38 U.S.C. § 7105(c) (formerly § 4005(c)). Claims cannot be reopened without new and material evidence. 38 U.S.C. § 5108 (formerly § 3008). “The one exception to this rule is when there has been an administrative error committed by the VA during the adjudication of the claim.” Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991) (emphasis added). See 38 C.F.R. § 3.105 (1991). See also 38 U.S.C. § 503(a) (formerly § 210(c)(2)). Otherwise, “[t]he decision of a duly constituted rating agency ... will be final and binding ... based on evidence on file at that time.” 38 C.F.R. § 3.104(a) (1991).

In appellant’s case, the BVA found that the 1967 rating board did not make a mistake based on the evidence before it. That evidence was a meager service medical record and a doctor’s report of a scar on the back with normal motion of the back. While appellant is certainly correct that his wound did not change in character over the years, the error, if any, was made by the doctor in 1967 and was not an administrative error during the adjudication process which would require the prior decision to be reversed or amended under 38 C.F.R. § 3.105(b). 38 C.F.R. § 3.105(b) (1991) (previous determinations which contain clear and unmistakable error will be reversed or amended). The adjudication in 1967 was correct given the state of the evidence at that time. In 1988, new evidence came to light as a result of a more comprehensive examination after appellant alleged a through-and-through wound. This justified reopening the case under the rubric of “new and material evidence.” See 38 U.S.C. § 5108.

Because the basis of the adjudication was, properly, “new and material evidence” as contrasted with “clear and unmistakable error,” it follows that the effective date was that of a reopened claim rather than a previous date that would have been permissible in the event of a successful collateral attack on a previously disallowed claim. See 38 C.F.R. § 3.400 (1991) (effective date of a claim reopened with new and material evidence is the date of receipt of the reopened claim); 38 C.F.R. § 3.105(a) (1991) (effective date of a decision reversed or amended because of clear and unmistakable error is the date of the reversed decision). See Myler v. Derwinski, 1 Vet.App. 571 (1991).

The September 18, 1990, decision of the BVA is AFFIRMED.

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## Henry v. Derwinski, 2 Vet. App. 506 (1992) {#6728117}

*2 Vet. App. 506*

_Henry v. Derwinski, 2 Vet. App. 506, decided 1992-06-22._

MEMORANDUM DECISION

STEINBERG, Associate Judge:
The pro se appellant, Clara B. Henry, a veteran’s surviving spouse currently in receipt of non-service-connected pension from the Department of Veterans Affairs (VA), appeals from a May 7, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to a special monthly pension for aid and attendance or for being housebound. In determining that the claimant was not housebound or in need of regular aid and attendance, the BVA relied in part upon a July 1990 VA examination report that contained clear inconsistencies and inadequacies which the Board failed to resolve. Consequently, the BVA decision will be vacated and the record remanded for readjudication.

The July 1990 examination report stated that the appellant was capable of leaving her house every day with the aid of only a walker, but also stated that she was able to walk only 15 yards without the aid of another person. R. at 26. The BVA failed to resolve this apparent inconsistency or to explain why her inability to travel more than 15 yards without the aid of another person does not render her housebound or in need of regular aid and attendance.

The July 1990 examination report further stated: “Patient should be able to feed, cloth [sic], bath [sic], self with the appropriate modification of her house.” R. at 25. The examiner also noted: “[Patient] claims to have numerous seizures. These should *507be optimally controlled with medications.” R. at 26. The BVA relied heavily on the examination report in reaching its conclusion. However, neither that report nor the BVA decision stated whether the appellant has made or feasibly can make the appropriate modifications to her home, whether she receives or feasibly could receive medication to control her seizures, and whether, if she does not meet those conditions postulated by the examiner, she is presently housebound or in need of regular aid and attendance.

Because the Board failed to resolve internal inconsistencies in the examination report it relied upon, its statement of the reasons or bases for its decision is inadequate. See Hanson v. Derwinski, 1 Vet.App. 512, 518 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Furthermore, because the examination report contains diagnoses which are conditional upon the appellant’s obtaining unspecified modifications to her home and obtaining unspecified medication, that examination report is insufficient for purposes of evaluating the appellant’s disability. See 38 C.F.R. § 4.2 (1991) (when diagnosis is not supported by findings or examination report contains insufficient detail, rating board must return the report as inadequate for evaluation purposes); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Therefore, pursuant to VA’s statutory duty to assist, 38 U.S.C. § 5107(a) (formerly § 3007), the appellant should be provided with “a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability is a fully informed one.” Green, supra; see also Wilson v. Derwinski, 2 Vet.App. 16, 21 (1991); Parker v. Derwinski, 1 Vet.App. 522, 526 (1991); Moore v. Derwinski, 1 Vet.App. 401, 405 (1991); EF v. Derwinski, 1 Vet.App. 324, 326 (1991).

Upon consideration of the record, the motion of the Secretary of Veterans Affairs for summary affirmance, and the appellant’s informal brief, it is held that the May 7, 1991, BVA decision is vacated, and the record remanded to the BVA for prompt conduct of a new physical examination of the claimant, readjudication, on the basis of all evidence and material of record, and issuance of a new decision supported by an adequate statement of reasons or bases — all in accordance with this decision. See 38 U.S.C. §§ 5107(a), 7104(a), (d)(1) (formerly §§ 3007, 4004); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). It is further held that summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court retains jurisdiction. The Secretary shall file with the Clerk and serve upon the appellant a copy of any Board final decision on remand. Within 14 days after such filing, the appellant shall notify the Clerk whether she desires to seek further review by the Court.

VACATED AND REMANDED.