Citation Nr: 0006551 Decision Date: 06/21/00 Archive Date: 09/08/00 DOCKET NO. 98-10 262A ) DATE JUN 21, 2000 ) ) ORDER The following corrections are made in a decision issued by the Board in this case on March 10, 2000: Under ORDER, on page 8, the word not is deleted, and the word denied is changed to granted. Accordingly, the ORDER, on page 8, is corrected to read as follows: The Board decision of August 26, 1949, having involved CUE, the motion is granted. R. F. WILLIAMS Member, Board of Veterans' Appeals Citation Nr: 0006551 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-10 262A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board of Veteran's Appeals August 26, 1949 decision that denied an appeal for restoration of service connection by aggravation for aphakia with retinal detachment of the right eye. REPRESENTATION Moving Party Represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. This case comes before the Board of Veteran's Appeals (Board) on motion by the moving party alleging CUE in an August 1949 Board decision. In a Statement in Support of Claim form received in January 1992, the veteran claimed there was CUE in VA's decision to sever service connection for a right eye disability, and in a Statement in Support of Claim form received in November 1997, through his representative, the veteran claimed CUE in an August 26, 1949 Board decision, which is construed as a request for review of the August 1949 Board decision on the basis of CUE. See 38 C.F.R. § 20.1404(e) (1999). FINDINGS OF FACT 1. At the time of the RO's grant of service connection for aphakia with retinal detachment on June 27, 1947, there was medical evidence of record which supported a finding of aggravation of preexisting disability in service. 2. The August 26, 1949 Board decision undebatably erred in its conclusion that the RO's June 1947 grant of service connection by aggravation for aphakia with retinal detachment of the right eye was clearly and unmistakably erroneous. CONCLUSION OF LAW The August 26, 1949 Board decision, which denied an appeal for restoration of service connection by aggravation for aphakia with retinal detachment of the right eye, is clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 1991); 38 C.F.R. §§ 20.1400-20.1411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. Pursuant to § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. Examples of situations that are not clear and unmistakable error include, but are not limited to, a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 1403(d)(3). Rule 1403, which is found at 38 C.F.R. § 20.1403 (1999), relates to what constitutes CUE and what does not, and provides as follows: (a) General. Clear and unmistakable error is a very specific and rare 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 result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed. (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. (Authority: 38 U.S.C.A. §§ 501(a), 7111). The Board further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court). More specifically, it was observed that Congress intended that the VA adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE in RO rating decisions, such as Fugo v. Brown, 6 Vet. App. 40 (1993). As stated by the Court, for CUE to exist: (1) "[e]ither the correct facts, as they were known at that 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 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 CUE must be based on the record and law that existed at the time for the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo, 6 Vet. App. at 43. A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In this case, the August 26, 1949 Board decision entered the conclusions that: the evidence clearly and unmistakably showed that severe ocular pathology with blindness was incurred prior to entering service; the findings did not demonstrate an increase or aggravation of preexisting disease during service; and the RO's initial grant of service connection for aphakia with retinal detachment was clearly and unmistakably erroneous, so that restoration of service connection was not warranted. In the motion for CUE through his representative, the veteran has presented his contentions regarding CUE in the August 1949 Board decision. The error is alleged to be that there was evidence of record at the time of the initial grant of service connection for aphakia with retinal detachment to support the grant of service connection based on aggravation. The veteran contends that the clinical finding of 20/2000 in the right eye at service entrance, corrected to 20/200, coupled with the finding of 20/NV at service separation, was evidence demonstrating "aggravation" of preexisting right eye disability in service. The veteran contends that, as a result, the Board was required to find that the RO's action granting service connection was not clearly and unmistakably erroneous so as to support the RO's severance action. At the time of the August 1949 Board decision, the evidence included a service entrance examination which recorded right eye uncorrected vision as 20/2000, corrected to 20/200, while also noting "no vision" in the right eye. In March 1943 in service, and at service separation, the veteran was noted to have no vision of the right eye (20/NV or 0/0) and dislocation of the lens of the right eye. A VA examination in June 1947 also noted a retinal detachment of the right eye. While this evidence could have been weighed differently in the RO's June 27, 1947 decision which granted service connection for aphakia with retinal detachment, the RO's grant of service connection was supported by some evidence of record demonstrating aggravation of preexisting right eye loss of vision in service, specifically the measure of 20/2000, corrected to 20/200 vision at service entrance, compared with no vision noted several months later and at service separation, and a finding of a dislocated lens on the separation examination. The standard for severing the grant of service connection was whether the decision, at the time it was made, and based on the evidence then of record, was clearly and unmistakably erroneous. The RO's May 1949 severance decision did not address whether the June 1947 RO decision's finding of aggravation was supported by evidence of record, that is, did not properly apply the test of whether the grant of service connection was undebatably erroneous. Instead, the May 1949 RO decision essentially weighed the evidence to reach the conclusion that any loss of vision which occurred during service was due to the natural progress of the preexisting right eye disability. However, as there was some evidence of record which could be interpreted as demonstrating aggravation of preexisting right eye loss of vision in service, and upon which the RO relied in granting service connection in 1947, the original grant of service connection in June 1947 was not clearly and unmistakably erroneous. The Board is cognizant of the fact that the veteran was seen for right eye complaints in January 1944, after it was reported in March 1943 that he had 0/0 or no vision in the right eye, and there is no indication of an inservice right eye injury before that time. Nevertheless, the fact that it was reported upon an eye test at the time of the induction examination that the veteran had some vision in the right eye, notwithstanding the fact that it was also recorded that he had no vision, coupled with the March 1943 and separation examination findings of blindness, is obviously some medical evidence of a chronic worsening or aggravation of the loss of vision in the right eye. If the claim had been denied by the RO and affirmed by the Board at the outset, it would certainly not have been clear and unmistakable error to do so; there was definite medical evidence of blindness in the right eye before, during, and upon separation from service. However, the issue here is whether the RO's grant of service connection was clearly and unmistakably erroneous. In view of the eye test that showed some vision in the right eye upon entry into service, the Board cannot conclude that that decision was undebatably erroneous in granting service connection. Therefore, the May 1949 RO's conclusion that the original grant of service connection was clearly and unmistakably erroneous was itself error, and the severance action was not proper. It follows that the August 26, 1949 Board decision also undebatably erred in its conclusion that the RO's June 1947 grant of service connection by aggravation for aphakia with retinal detachment of the right eye was clearly and unmistakably erroneous, and the corollary conclusion that the May 1949 severance action was proper. For these reasons, the Board now finds that the Board's August 1949 denial of an appeal for restoration of service connection by aggravation for aphakia with retinal detachment of the right eye was clearly and unmistakably erroneous. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400-20.1411. ORDER The Board decision of August 26, 1949 not having involved CUE, the motion is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals