Citation Nr: 0007189 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-12 095A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the May 7, 1996 Board decision which denied an application to reopen a claim of entitlement to service connection for a right eye disorder. REPRESENTATION Moving Party Represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The moving party served on active duty for training from June to December 1964. He also had unverified periods of inactive duty for training. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the appellant for revision or reversal on the grounds of clear and unmistakable error (CUE) in a May 7, 1996 Board decision. The Board notes that a July 1998 RO decision determined that there was no clear and unmistakable error in the December 1969 RO decision. The matter before the Board pertains to the May 1996 Board decision, a separate and distinct matter. FINDINGS OF FACT 1. The May 1996 Board decision found that the moving party had not submitted new and material evidence to reopen his claim for service connection for a right eye disorder. 2. The moving party has alleged that the claim should have been reopened by the Board in May 1996 as the evidence showed that his current right eye disorder is associated with an injury he sustained during service, and that the Board applied the wrong legal standard (i.e., should have done a de novo review of the evidence) in its determination not to reopen the claim. 3. The May 7, 1996 Board decision considered all relevant evidence and was supported by the evidence then of record; it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied, and the decision was not undebatably erroneous. CONCLUSION OF LAW The May 7, 1996 Board decision, which failed to reopen a claim for entitlement to service connection for a right eye disorder, does not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party has argued that there was clear and unmistakable error ("CUE") in the May 7, 1996 Board decision which concluded that new and material evidence had not been submitted to reopen a claim for service connection for a right eye disorder. The moving party representative has submitted a written brief, dated in October 1999, in support of the moving party motion. 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 pleading requirement. 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. The evidence before the RO in December 1969 consisted of the veteran's service medical records, as well as private and VA medical reports. At the time of the December 1969 RO decision, the veteran had contended that he had macular scarring of his right eye as a result of a head injury in an accident during training in August 1968. An October 1969 service medical record included a statement by the veteran asserting that he had been treated by a family physician for macular scarring of the right eye. A VA general medical examination conducted in March 1969 did not reflect a diagnosis related to the right eye. A private medical statement dated in September 1969 included the diagnosis of macular scarring of the right eye and the notation that the lesion could have been due to an injury with hemorrhage of the right macula. The Board's May 1996 decision found that the evidence submitted since the RO's December 1969 rating decision was not new and material, and the appellant's claim for service connection for a right eye disorder was not reopened and remained denied. In the May 1996 Board decision, the Board determined that the evidence that had been submitted since the December 1969 RO decision included essentially duplicative service and private medical records that had been considered at the time of the December 1969 rating decision. The Board noted that the remainder of the newly submitted private medical records consisted of records reflecting current treatment and examination of the veteran's eyes. The Board did observe that one of the records included a physician's notation indicating that he had treated the veteran in September 1969; however, it was noted that the physician did not associate the veteran's current right eye problems with his active military service. In short, the May 1996 Board decision observed that "no evidence has been received which demonstrates that any current right eye abnormality is related to the veteran's active military duty." The Board found that the newly submitted materials were not probative and did not raise a reasonable possibility that, when viewed in the context of all of the evidence, both new and old, the additional evidence would change the outcome. Therefore, the Board determined that the additional evidence was not new and material. In the October 1999 motion for revision, the appellant and his representative have asserted that CUE in the May 1996 Board decision consisted in the Board's failure to conduct a de novo review "rather than deny the veteran's claim based on the submission of new and material evidence." The appellant argues that at the time of the 1969 rating decision, the veteran's claims file contained evidence of a right eye disorder and "the evidence which accompanied this diagnosis should have been considered" by the Board in its May 1996 decision. As noted in the Board's May 1996 decision, the available service medical and post-service medical records failed to associate the veteran's current right eye disability with his active service. Further, the records submitted since the December 1969 RO decision were found by the May 1996 Board decision to be essentially cumulative and duplicative of those already of record. Accordingly, the failure to conclude that the newly submitted evidence showed that the veteran had a current right eye disorder which was related to service was not an "undebatable" error. The May 1996 Board decision was, therefore, consistent with and supported by the law then applicable for determining whether the veteran had met his burden to reopen the claim for service connection for a right eye disorder. 38 U.S.C.A. §§ 5108, 7104 (West 1991). Therefore, the Board finds that the denial of service connection for a right eye disorder, on the basis that new and material evidence had not been presented, was a reasonable exercise of adjudicatory judgment, and did not therefore require that a de novo review be undertaken. While not explicitly argued by the veteran's representative, the Board notes that the general tone of the October 1999 brief suggests that there was CUE in the May 1996 Board decision in that the Board applied an incorrect legal standard for new and material evidence. The standard applied by the Board in its May 1996 decision required that there must be a reasonable possibility that the new evidence would change the outcome of the prior final decision in order to be considered "material" evidence. Subsequent to the May 1996 Board decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the United States Court of Appeals for Veterans Claims (the United States Court of Veterans Appeals prior to March 1, 1999) had improperly interpreted the term new and material, and stated that whether new evidence is material must be evaluated "under the proper, regulatory standard." Hodge v. West, 155 F.3d 1356, 1361, 1364 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a) (1998). However, without deciding whether application of the new standard would or would not change the outcome in this case, the Board observes that by its regulatory definition, CUE 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. 38 C.F.R. § 20.1403(e) (1999). The Court has held that a new interpretation "of [a] law subsequent to a [rating] decision cannot be the basis for a valid [CUE] claim." Berger v. Brown, 10 Vet. App. 166, 170 (1997). (A new rule of law from a Court decision rendered "in 1993 could not possibly be the basis for an adjudication error" in a rating decision entered in 1969.) Pursuant to the holding in Berger, the use of the Colvin test in the Board's May 1986 decision cannot be a basis to deem that decision to have involved clear and unmistakable error. After careful review of the evidence of record, the undersigned concludes that the moving party has not demonstrated that the Board's May 1996 decision contains CUE. While duly noting the appellant's arguments, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. 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 v. Principi, 3 Vet. App. 310, 313-14 (1992). Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the May 7, 1996 Board decision on the grounds of CUE is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals