Citation Nr: 0003668 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-10 259A ) DATE ) ) THE ISSUE Whether a March 1998 decision of the Board of Veterans' Appeals denying service connection for a bilateral eye condition and residuals of a left eye laceration should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (the Board) on a motion by the moving party alleging clear and unmistakable error in a Board decision issued in March 1998. FINDINGS OF FACT 1. In a March 1998 final decision, the Board denied service connection for a bilateral eye condition and residuals of a left eye laceration. 2. A letter from Harold Strauss, O.D., dated May 14, 1998, was not before the Board when it rendered its decision in March 1998, and there is no evidence suggesting that the Board was aware that any statement from Dr. Strauss should have been part of the appellate record at that time. 3. Aside from the reliance on Dr. Strauss' letter of May 1998, the pleadings submitted by the moving party alleging clear and unmistakable error in the March 1998 Board decision do not clearly and specifically set forth why the result in the decision would have been manifestly different but for the alleged error. CONCLUSIONS OF LAW 1. Dr. Strauss' letter dated May 14, 1998, is not a relevant document that could have reasonably been expected to be possessed by the Board when it issued its decision in March 1998. 38 C.F.R. §§ 20.1403(b)(2), 20.1405(b) (1999). 2. The Board's March 1998 decision was not clearly and unmistakably erroneous for failing to award service connection for a bilateral eye condition and residuals of a left eye laceration. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Board decision is subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a) (West Supp. 1999). Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on its own motion, or upon request of a claimant at any time after the decision is made. 38 U.S.C.A. § 7111(c) and (d). A request for revision is to be submitted directly to the Board and decided by the Board on the merits, 38 U.S.C.A. § 7111(e), and a claim filed with the Secretary requesting such reversal or revision is to be considered a request to the Board, 38 U.S.C.A. § 7111(f). Motions for review of Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to regulations published by VA in January 1999. 38 C.F.R. §§ 20.1400-1411 (1999). According to the regulations, clear and unmistakable error 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. 38 C.F.R. § 20.1403(a). Generally, clear and unmistakable error is present when 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 ignored or incorrectly applied. Id. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1). However, 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 VA 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. 38 C.F.R. § 20.1403(b)(2). The Board's Rules of Practice further provide that while material included in the record on the basis of the aforementioned Rule (20.1403(b)(2)) is not considered new evidence, no new evidence will be considered in connection with the disposition of the motion. 38 C.F.R. § 20.1405(b) (emphasis added). The regulations cited above further provide that 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. 38 C.F.R. § 20.1403(c) (emphasis added). Examples of situations that are not clear and unmistakable include: (1) Changed diagnosis. A new 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 under 38 U.S.C.A. § 5107(a); and, (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, 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. 38 C.F.R. § 20.1403(e). In addition to the above, a motion for clear and unmistakable error in a Board decision must satisfy specific pleading requirements, and if it does not, the motion must be denied. 38 C.F.R. § 20.1404(b). The motion must set forth clearly and specifically the alleged 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 manifestly different but for the alleged error. Id. (emphasis added). Non-specific allegations of failure to follow regulations, failure to give due process, and other general, non-specific allegations of error are examples of allegations that will not meet the pleading requirements necessary to file a motion for clear and unmistakable error in a Board decision. Id. It should be noted that the above-cited regulatory authority was published with the specific intent to codify the current requirements for a viable claim of clear and unmistakable error that the United States Court of Appeals for Veterans Claims (the Court) has defined for claims of clear and unmistakable error in rating decisions. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994). Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 (1997). On this point, it should be noted that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." The notice of proposed rulemaking, 63 Fed. Reg. 27534, 27536 (1998), reflects that the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of [clear and unmistakable error]." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). The Board may therefore rely on the well-established precedent of the Court on what exactly constitutes a valid claim of clear and unmistakable error, such as is set forth in Russell, Damrel, Fugo, all supra. In a decision dated March 4, 1998, the Board denied service connection for, inter alia, a bilateral eye disorder and residuals of a left eye laceration. These claims were denied as not well grounded under applicable law and regulations governing veterans benefits and the precedent decisions of the Court. Evidence considered by the Board included the moving party's service medical records, private medical records dated from 1988 to 1993 and the reports of VA compensation examinations conducted in October 1993. In discussing the evidence, the Board found these claims not well grounded on the following grounds: The veteran contends the [regional office] erred by failing to grant service connection for an eye disorder. He maintains that he entered service with defective vision and suffered a welding burn, that he currently has an eye disorder diagnosed as pellucid marginal degeneration, and that his eye disorder was incurred or aggravated in service. Review of the service medical records, however, fails to show abnormality of the eyes other than impaired visual acuity, which predated service, and an episode of conjunctivitis in March 1969, at which time he complained of having experienced flashes to his eyes while working in a welding shop. There were no subsequent reports of complaints referable to the eyes. The separation examination, in August 1970, noted distant vision to be corrected to 20/20, bilaterally, and reported the eyes to be normal on clinical evaluation. Postservice, the veteran has neither submitted, nor alluded to the existence of, any medical records which would show disability of the eyes from the time he left active duty until 1992, when he began to be seen by eye specialists. Those professionals have reported corneal abnormalities in both eyes, diagnosed as pellucid marginal degeneration and/or keratoconus, and he underwent surgery on his eyes in 1992. He contends he should not have been accepted for service because of his impaired vision, but that is not the issue here. In fact, he served for nearly two years, and his vision was reported as corrected to 20/20 in both eyes at his separation examination. As discussed above, to make out a well-grounded claim, the law requires that the veteran submit medical evidence to connect a present disability to an inservice disease or injury. He has not done that as to his current eye disorders, however diagnosed, and the claim is not well grounded and must be denied. With regard to the veteran's claim for service connection for residuals of a left eye laceration, there is no evidence in service medical records of such an injury, and, as noted above, his eyes were normal, externally, on a May 1970 examination. The veteran has asserted that he sustained a left eye injury in a combat situation in Vietnam in about November 1969. The Board recognizes that, with respect to an injury or disease claimed to have been incurred during combat, even in the absence of official records to corroborate incurrence of the claimed injury or disease, VA is required to accept as sufficient proof of service connection satisfactory lay or other evidence, provided that the evidence is consistent with the circumstances, conditions, or hardships of such service, and to resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1996). Even accepting, without verification of combat involvement, the veteran's account of a left eye injury when he ran into a fixed object during enemy shelling, there is no medical evidence of associated disability during the remainder of his active service. Further, there is no evidence, either in the veteran's postservice treatment records or in the October 1993 VA examination, of residuals of a left eye laceration. Finally, no physician has related the eye disorders which were first observed in 1992 to inservice trauma. Thus, in the absence of evidence of a current eye disability related to inservice injury, the claim is not well grounded and must be denied. See Board decision, pg. 8-9 (Mar. 4, 1998). In June 1998, the moving party filed a request for reconsideration of the Board's March 1998 decision. Submitted with the request was a letter dated May 14, 1998, from Dr. Strauss which stated the following: [The moving party] was seen in our office July 8, 1971 at the age of 22. The right eye corrected to 20/40-. In 1978 his right eye corrected to 20/40- and in 1988 20/50. The left eye could not be corrected and was not prescribed for in any of the above dates. Based on this statement, the moving party argued that the Board improperly relied on the results of the August 1970 separation physical examination to deny his eye disorder claims, stating, "[a]re we to believe that upon my discharge from active duty, my eyesight had magically improved, yet rapidly deteriorated again within a few short months? And that service - related incidents had absolutely nothing to do with the loss of vision in my left eye?" He further stated his belief that the August 1970 separation examination was obviously inaccurate given the definitive findings of impaired visual acuity made in service on the May 1968 enlistment examination (right eye was 20/100, corrected to 20/20 and left eye was 20/200, corrected to 20/30) and on the November 1968 "Enlistment Classification Record" (20/400, corrected to 20/40 in both eyes) as well as shortly after service in July 1971, as detailed in Dr. Strauss' letter of May 1998. The moving party asserted that "[s]ince no reasonable or verifiable evidence other than the miraculous eye exam of Aug. 1970 exists, it is obvious that my appeal was improperly denied; it was denied upon flawed evidence." Notwithstanding his arguments, the request for reconsideration of Board's March 1998 decision was denied by the Board's Acting Chairman in August 1998. The Acting Chairman found that the Board's decision contained findings of fact that had a plausible basis in the record, that the decision was consistent with the available evidence and applicable law/regulations, and that it contained clearly stated reasons and bases for the decision. Thereafter, in May 1999, the moving party filed a motion for revision/reversal of the Board's March 1998 decision on the grounds of clear and unmistakable error. In his pleadings, he again submitted a copy of Dr. Strauss' May 14, 1998, letter and stated, "[t]his medical document clearly demonstrates that on July 8, 1971, my left eye could not be corrected, and provides the necessary medical nexus evidence between my current eye disability and service-related injuries sustained during my active service." He went on to plead error on the basis of the three eye incidents he claimed occurred during service (the May 1969 welding shop flash burn injury to both eyes; the November 1969 laceration injury to his left eye sustained while he was running out of a hut in Vietnam during a mortar attack; and the related incident in which he broke his glasses when he hit a piece of metal hanging from the roof of a bunker, for which he did not receive replacement glasses for the balance of his service), stating "[t]he medical diagnosis of Dr. [Strauss] on July 8, 1971 revealed the damage caused to my eyes as a result of these three injuries." On this point, he added, "[t]here is little doubt that these service related injuries were connected to the serious eye damage to my left eye as diagnosed by Dr. Strauss, given [the November 1968 enlistment document findings, the three incidents described above, and the timing of Dr. Strauss' July 1971 examination relative to service discharge]." The moving party concluded by stating that the medical document from Dr. Strauss dated in May 1998 "undeniably" established a medical nexus between his current eye disorders and service, and that it was therefore clear and unmistakable error for the Board to have failed to consider the material facts represented in that document when it issued its decision in March 1998, notwithstanding the fact that the May 1998 letter itself was not part of the appellate record reviewed at that time. In a separate motion, also dated in May 1999, the moving party argued that good cause existed to accept inclusion of the May 1998 letter from Dr. Strauss with the appellate record before the Board in March 1998 on the grounds that the facts contained therein were pertinent to the case and constituted the necessary medical-nexus evidence to well ground the eye disorder claims. He also argued for the letter's inclusion on the grounds of fairness, stating that he was unfamiliar with the Board's rules of practice regarding admissibility of evidence and the need to submit medical-nexus evidence to well ground his claims. In addressing the matter of inclusion of Dr. Strauss' letter dated May 14, 1998, the Board must deny this part of the moving party's motion on procedural grounds. As detailed above, the regulations governing motions challenging a prior Board decision on the grounds of clear and unmistakable error specifically prohibit consideration of new evidence in connection with such motions, and, notwithstanding the arguments for inclusion of this report on the grounds of fairness, there are no exceptions to this rule other than what is provided under Rule 1403(b)(2). Although the Board's decision of March 1998 falls under the purview of Rule 1403(b)(2) based on date of issuance, the letter from Dr. Strauss dated in May 1998 would not be considered "relevant documents" held constructively by VA, as it is not shown that the Board had direct or inferred knowledge of the existence of additional evidence to be provided by Dr. Strauss when its decision was issued in March 1998. Cf. Bell v. Derwinski, 2 Vet. App. 611 (1992); Franzen v. Brown, 9 Vet. App. 235 (1996). This is particularly the case here as it has not been claimed or alleged that the Board should have had possession of a statement from Dr. Strauss when it rendered its decision in March 1998, and this, of course, assumes that Dr. Strauss was prepared to draft such a statement at some point in time prior to the March 4, 1998 Board decision and the Board knew it. With respect to the moving party's claim that the letter should have been included given the "material nature" of Dr. Strauss' findings, i.e., although not a matter of record when the Board issued its decision in March 1998, the underlying facts presented by Dr. Strauss were established, the Board must emphasize that, other than the limited exception cited above under Rule 1403(b)(2), the legal forum under which motions alleging clear and unmistakable error in prior Board decisions are addressed is not the appropriate venue for consideration of such evidence. Rule 1411 specifically provides that a motion under this subpart is not a claim subject to reopening under 38 U.S.C. § 5108 (relating to reopening claims on the grounds of new and material evidence). 38 C.F.R. § 20.1411(b) (1999). The Board observes that the moving party is free to file a claim under section 5108 of 38 U.S.C. at any time, and the Board's decision on this motion at this time in no manner impinges such right. In light of the above, the Board concludes that its decision of March 1998 was not clearly and unmistakably erroneous on any other grounds claimed in the moving party's pleadings. As stated by the Court and adopted in the regulations governing motions alleging clear and unmistakable error in prior Board decisions, for such error to exist, 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." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). On this point, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of clear and unmistakable. See Fugo, supra, 6 Vet. App. at 43, 44 ("[i]t must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error'" and, there is "presumption of validity to otherwise final decisions" and the "presumption is even stronger" when such cases are collaterally attacked on the basis of error) and Luallen v. Brown, 8 Vet. App. 92, 95 (1995) (a disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error). In this case, the Board finds that, apart from his reliance on Dr. Strauss' letter of May 1998, the moving party has failed to set forth persuasive reasons why the Board decision of March 1998 was clearly and unmistakably erroneous to the extent that, had the alleged errors not been committed, the outcome in the case would have been manifestly different. Fugo, 6 Vet. App. at 44. The moving party's pleadings essentially reflect no more than disagreement as to how the facts were weighed or evaluated, which as stated above, does not amount to a valid claim of clear and unmistakable error. 38 C.F.R. § 20.1403(d)(3) (1999). Based on a careful read of his pleadings, the Board is unable to discern any "clearly and specifically set forth" allegations as to how the Board's decision contained any error that would compel the conclusion, to which reasonable minds could not differ, that the result in the decision would have been manifestly different but for the alleged error. As detailed above, the Board denied the eye disorder claims essentially on the basis that there was no medical-nexus evidence showing a link between the treatment and diagnosis of any eye disorder after service and any disease or injury treated in service. The moving party makes a number of statements in his pleadings regarding alleged inconsistencies in visual acuity examination results made in service, but as it is not shown that he is competent to render opinions on the relationship of such inconsistencies to any currently diagnosed eye disorder, such pleadings of error are without merit for purposes of a valid claim of clear and unmistakable error. Hence, other than his own opinions on such matters, the Board can ascertain nothing of any substance in the moving party's pleadings setting forth persuasive reasons why the claims should have been allowed. The caselaw of the Court and the regulations cited above are clear on the point that allegations of clear and unmistakable error must be supported by specific allegations of error in fact or law in the Board decision, and if it is not absolutely clear that a different result would have ensued but for the error, the error complained of cannot be clear and unmistakable. A careful read of the allegations of error advanced by the moving party herein lack these pleading requirements. Instead, his allegations represent, at best, expressions of disagreement with how the Board weighed or evaluated the evidence in its decision of March 1998, which as stated above, is not the "very specific and rare" kind of error that constitutes clear and unmistakable error. 38 C.F.R. § 20.1403(a) & (d)(3) (1999). Accordingly, the Board concludes that the moving party has failed to set forth clearly and specifically a legal or factual basis to support a reason why the result in March 1998 Board decision would have been manifestly different but for the alleged errors. 38 C.F.R. §§ 20.1403(a), 20.1404(b) (1999). ORDER The motion alleging clear and unmistakable error in the Board's March 1998 decision is denied. A. BRYANT Member, Board of Veterans' Appeals