Citation Nr: 0007173 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 97-34 027A ) DATE ) ) THE ISSUES 1. Whether there was clear and unmistakable error in the September 26, 1997, Board decision, which denied the veteran's claim of entitlement to service connection for tumors of nerves (Morton's neuroma) of the left foot. 2. Whether there was clear and unmistakable error in the September 26, 1997, Board decision, which denied service connection for a right knee disorder, claimed as secondary to tumors of nerves (Morton's neuroma) of the left foot. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant served on active duty from January 1951 to August 1953. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the appellant as to clear and unmistakable error in a September 26, 1997, Board decision. FINDINGS OF FACT 1. In a September 26, 1997, decision the Board denied entitlement to service connection for tumors of nerves (Morton's neuroma) of the left foot, finding that the preponderance of the evidence was against the claim. 2. In a September 26, 1997, decision the Board denied entitlement to service connection for a right knee disorder, secondary to tumors of nerves (Morton's neuroma) of the left foot, finding that the preponderance of the evidence was against the claim. 3. The moving party has alleged that service connection should have been granted as the evidence supported the claim; and specifically, that the evidence did show that tumors of nerves (Morton's neuroma) of the left foot, was first manifested during service, and that he has a right knee disorder secondary to the Morton's neuroma of the left foot. CONCLUSIONS OF LAW 1. The moving party's allegation of clear and unmistakable error in the September 26, 1997, Board decision in failing to grant a claim for entitlement to service connection for tumors of nerves (Morton's neuroma) of the left foot 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, 20.1404 (1999). 2. The moving party's allegation of clear and unmistakable error in the September 26, 1997, Board decision in failing to grant a claim for entitlement to service connection for a right knee disorder, claimed as secondary to tumors of nerves (Morton's neuroma) of the left foot, 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, 20.1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant has argued that there was clear and unmistakable error ("CUE") in the September 26, 1997 Board decision, which concluded that chronic Morton's neuroma was not incurred during service and that a well grounded claim for secondary service connection for a right knee disorder had not been established. 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 September 1997 decision contains CUE. That determination found that service medical records showed that the veteran had received treatment for bilateral pes planus and the beginning of a Morton's toe of the right foot, that the separation examination from service showed no foot disorder, that a VA examination dated in June 1996 found no signs of interdigital neuroma, and there was no medical evidence or opinion that would establish a current diagnosis of Morton's neuroma that was related to the veteran's service. The Board also found that service connection was not in effect for any disability and that there was no evidence submitted that demonstrated that the veteran had a right knee disorder that was related to a service connected condition. Thus, the Board held that the preponderance of the evidence was against the claims for service connection for a Morton's neuroma of the left foot or for a right knee disorder; and therefore, the claim was denied. The moving party argues initially that the evidence of record at the time of the September 1997 decision showed that the preponderance of the evidence supported his claims. Such an allegation does not constitute a valid claim 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 September 1997 decision were to the effect that, while the veteran manifested bilateral pes planus and a beginning Morton's toe of the right foot during service, Morton's neuroma of the left foot was not shown on VA examination in 1996 and, in any event, not related to the veteran's period of active duty. The claim for service connection for a right knee disorder, as secondary to Morton's neuroma of the left foot was not plausible simply because service connection was not in effect for any condition. Accordingly, the failure to conclude that the veteran had submitted a plausible claim is not an "undebatable" error. The September 1997 Board decision was, therefore, consistent with and supported by the law then applicable. It is noted that the arguments raised by the veteran relate to the interpretation and evaluation of the evidence. In this respect, the veteran has raised a generic allegation of error concerning the September 1997 Board decision, but not necessarily the discrete issue of CUE. The veteran has alleged that the September 1997 decision was the product of error essentially because the decision failed to interpret the evidence as the veteran believed it should be interpreted. This argument represents 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, the undersigned concludes that the moving party has not set forth specific allegations of error, either of fact or law, in the September 26, 1997, decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the September 26, 1997, Board decision, which denied the veteran's claim of entitlement to service connection for tumors of nerves (Morton's neuroma) of the left foot, on the grounds of CUE is denied. The motion for revision of the September 26, 1997, Board decision, which denied service connection for a right knee disorder, claimed as secondary to tumors of nerves (Morton's neuroma) of the left foot, on the grounds of CUE is denied. M. G. MAZZUCCHELLI Acting Member, Board of Veterans' Appeals