Citation Nr: 0007432 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-01 934A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the January 13, 1998 Board of Veterans' Appeals (Board) decision which denied entitlement to service connection for bursitis and minor capsulitis of the right shoulder, costochondritis of the left rib cage, and hypertension, and which denied an evaluation in excess of 30 percent for the service-connected left shoulder disability. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from January 1951 to November 1952. This matter is currently before the Board on motion by the appellant as to clear and unmistakable error (CUE) in a January 13, 1998 Board decision. This matter comes before the Board on a motion from the claimant, who lives in the jurisdiction of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 1998, the Board notified the veteran that his motion for reconsideration had been denied. In March 1999, the Board sent the veteran a copy of the regulations pertaining to CUE motions. FINDINGS OF FACT 1. The January 1998 Board decision found that the moving party had not submitted evidence of well grounded claims for service connection for a right shoulder disability, costochondritis of the left rib cage and hypertension; the decision had also found that no evidence had been submitted to warrant an evaluation in excess of 30 percent for the left shoulder disorder. 2. The appellant has alleged that the claims for service connection should have been found to be well grounded and granted as evidence had established that the claimed conditions were related to his service-connected left shoulder disability; he has also alleged that the evidence did establish that his left shoulder was more disabling than the current evaluation suggested and that entitlement to an increased evaluation had therefore been shown. 3. The veteran has not identified any medical reports which in which a physician or other medical specialist connect any of the claimed disabilities to disease or injury in service or to a service-connected disability. Rather, he asserts that current medical evidence should be read as establishing a connection. This is a simple disagreement as to how the evidence is weighed and not an allegation of CUE. 4. The service-connected left shoulder disability is currently assigned the highest rating under the applicable rating code. The veteran has not asserted that the disability should be rated under any other code. Nor has he pointed to any evidence that should be rated under any other code. His assertion that a higher rating should be granted is a simple disagreement as to how the evidence is weighed and not an allegation of CUE. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the January 13, 1998 Board decision in failing to find that the service connection claims were well grounded and in failing to find entitlement to an increased evaluation fails to meet the threshold pleading requirements for revision of the Board decision on grounds of clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403, 1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has argued that there was clear and unmistakable error (CUE) in the January 13, 1998 Board decision, which concluded that well grounded claims for service connection had not been presented and that entitlement to an increased evaluation had not been demonstrated. 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 (1999). Pursuant to 38 C.F.R. § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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. The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 38 C.F.R. § 20.1403, 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 points out that a review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. In this case, the moving party has not demonstrated that the Board's January 1998 decision contains CUE. That determination had found that the veteran had failed to present evidence of well grounded claims for service connection; it had also been found that entitlement to an increased evaluation had not been established. The moving party argues that the evidence in the record at the time of the January 1998 Board decision had shown that his claimed right shoulder bursitis, left rib cage costochondritis and hypertension were related to his service- connected left shoulder disability. He also argued that this evidence had demonstrated that his left shoulder disorder was more disabling than the 30 percent disability evaluation suggested. Such allegations do not constitute valid claims of CUE. 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 of 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 Board must emphasize that 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 [clear and unmistakable error] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In this case, the facts before the Board at the time of the January 1998 decision included the service medical records, numerous post-service treatment records, VA examination reports and testimony at personal hearings. As noted in the Board decision, there was no objective evidence of the existence of right shoulder or rib cage complaints in service. Nor was there any evidence of the existence of hypertension in these records. Hypertension was also not manifested to a degree of 10 percent within one year of his separation. Finally, there was no competent medical evidence that any of these claimed disorders were related to his service-connected left shoulder disability. In regard to the increased evaluation claim, the evidence had shown that he was receiving the maximum amount of compensation allowable for limitation of motion. There was no evidence of ankylosis of the left shoulder joint; thus, there was no indication of entitlement to an increased disability evaluation. Accordingly, the failures to conclude that the claims for service connection were well grounded or that entitlement to an increased had been established are not "undebatable" errors. The January 1998 Board decision was, therefore, consistent with and supported by the laws then applicable for determining whether claims are well grounded and for determining entitlement to an increased evaluation. Therefore, the Board finds that the denials of service connection and an increased evaluation were reasonable exercises of adjudicatory judgment and did not involve CUE. Similarly, it is noted that the arguments raised by the veteran relate to the interpretation and evaluation of the evidence. In this regard, the veteran has raised generic allegations of error concerning the January 1998 Board decision, but not necessarily the discrete issue of CUE. These arguments represent a clear-cut example of disagreement as to how the evidence was interpreted and evaluated, and as such cannot constitute a basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(3); see also Luallen, supra. After careful review of the evidence of record, it is concluded that the moving party has not set forth specific allegations of error, either of fact or law, in the January 1998 decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the January 13, 1998 Board decision on the grounds of CUE is denied. CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals