Citation Nr: 0005203	
Decision Date: 02/28/00    Archive Date: 03/07/00

DOCKET NO.  98-00 480A	)	DATE
	)
	)


THE ISSUE

Whether a December 1997 decision of the Board of Veterans' 
Appeals dismissing claims for service connection for gout and 
stomach ulcer should be revised or reversed on the grounds of 
clear and unmistakable error.


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Hickey, Counsel



INTRODUCTION

The veteran had active military service from January 1941 to 
September 1945.  

In January 1998, the Board of Veterans' Appeals (Board) 
received a motion requesting reconsideration of a December 1, 
1997, Board decision that dismissed the veteran's claims for 
service connection for gout and stomach ulcer on the basis 
that the claimant had not timely perfected his appeal.  The 
motion was denied by the Acting Chairman of the Board in 
February 1998.  In the February 1998 denial the veteran was 
informed of recently- enacted legislation, Public Law No. 
105-111, 111 Stat. 2271 (1997) (codified at 38 U.S.C. § 7111) 
which, for the first time, granted the Board authority to 
review and revise a prior Board decisions on the grounds of 
clear and unmistakable error (CUE).  The Board also advised 
the veteran that his motion for reconsideration on the basis 
of obvious error was construed as a motion for revision of 
the December 1997 Board decision on the grounds of CUE.  
Review of the CUE motion was deferred pending the issuance of 
implementing regulations.

In May 1999 the veteran was advised that final regulations 
pertaining to filing a CUE motion had been published and he 
was provided a copy thereof.  These regulations include the 
general requirements that the motion for CUE include the name 
of the veteran, the applicable VA file number, the date of 
the Board decision to which the motion relates and the issue 
or issues to which the motion pertains. 38 C.F.R. § 
20.1404(a).  At that time the Board advised the veteran that 
despite the February 1998 communication to the contrary, the 
veteran's motion for consideration would not be considered as 
a CUE motion, unless the Board was advised by the veteran or 
his representative that he wanted such consideration to be 
undertaken.  

Received in May 1999 was a handwritten statement from the 
veteran indicating his desire for consideration of his case 
on the basis of CUE, accompanied by a letter from his service 
representative.  The two documents taken together meet the 
requirements of  38 C.F.R. § 20.1404(a).

In addition to the specific requirements for filing a motion 
for revision of a decision based on clear and unmistakable 
error set forth under 38 C.F.R. § 20.1404(a), there are also 
specific requirements for making allegations of clear and 
unmistakable error that are set forth under 38 C.F.R. § 
20.1404(b).  Such requirements include that "[t]he motion 
must set forth clearly and specifically the alleged clear and 
unmistakable error 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.  Non-specific allegations of failure to follow 
regulations or failure to give due process, or any other 
general, nonspecific allegations of error, are insufficient 
to satisfy the requirement of the previous sentence.  Motions 
which fail to comply with the requirements set forth in this 
paragraph shall be denied."

Although the veteran's May 1999 motion did not state with any 
degree of specificity the alleged clear and unmistakable 
error in the Board's December 1997 decision the veteran's 
representative did provide such specificity (as discussed in 
the decision below) in written argument in November 1999.  
Accordingly, the requirements of 38 C.F.R. § 1404(b) are 
deemed to be met.


FINDINGS OF FACT

1.  On December 1, 1997, the Board of Veterans' Appeals 
dismissed the veteran's claims for service connection for 
gout and stomach ulcer, on the basis of an untimely appeal.  

2.  In May 1999, a motion for revision of the December 1997 
Board decision was filed based on clear and unmistakable 
error.

3.  The Board's 1997 decision dismissing the veteran's claims 
for service connection for gout and stomach, does not contain 
an error which, had it not been made, would have manifestly 
changed the outcome of that Board decision.


CONCLUSION OF LAW

The Board's 1997 decision, which dismissed the veteran's 
claims for service connection for gout and stomach, is not 
clearly and unmistakably erroneous. 38 U.S.C. § 7111 (1999); 
38 C.F.R. §§ 20.302, 20.305, 20.1403 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background
 
In a July 1992 rating decision, the RO denied the veteran's 
claims of service connection for gout and a stomach ulcer.  
The veteran was notified of the decision by a letter dated 
July 31, 1992.  He filed a notice of disagreement with the 
determination, and a statement of the case was issued on July 
22, 1993.  The cover letter informed the veteran he had 60 
days to file a substantive appeal and that if he needed more 
time he had to request an extension.  The record reflects 
that the veteran signed a substantive appeal on September 24, 
1993, which was received by the RO on September 27, 1993.  


Legal Analysis

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. 38 C.F.R. § 20.1403(a).

In 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.  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).

According to the applicable regulations, a substantive appeal 
of an RO's decision must be filed within 60 days of the date 
that the RO mails the statement of the case to the appellant, 
or within the remainder of the one-year period extending from 
the date the notification of the RO decision was mailed, 
whichever period ends later.  38 C.F.R. § 20.302.  
Computation of the time limit for filing shall be in 
accordance with 38 C.F.R. § 20.305, which provides for 
acceptance of the postmark date.  When it is required that 
any written document be filed within a specified period of 
time, a response postmarked prior to expiration of the 
applicable time limit will be accepted as having been timely 
filed.  In the event that the postmark is not of record, the 
postmark date will be presumed to be five days prior to the 
date of receipt of the document by the Department of Veterans 
Affairs.  In calculating this 5-day period, Saturdays, 
Sundays and legal holidays will be excluded.  Further, in 
computing the time limit for filing a written document, the 
first day of the specified period will be excluded and the 
last day included.  Where the time limit would expire on a 
Saturday, Sunday, or legal holiday, the next succeeding 
workday will be included in the computation.

The veteran contends that the Board's December 1997 decision 
was clearly and unmistakably erroneous in finding that his 
substantive appeal was not timely filed.  The veteran takes 
issue with the way in which the Board applied the pertinent 
regulations in that decision.  It is argued that his claims 
should not have been dismissed because his substantive appeal 
was timely filed.  

Application of the pertinent regulations to the facts in this 
case reveals that inasmuch as the veteran's September 1993 
substantive appeal was received beyond one year after notice 
of the rating (dated July 31, 1992), it was required to be 
filed within 60 days after the issuance of the statement of 
the case on July 22, 1993.  The applicable 60 day period 
terminated on September 20, 1993, and the veteran's appeal 
was received on September 27, 1993.  When the postmark date 
of that document is presumed to be five days prior to the 
date of its receipt, excluding Saturdays and Sundays, the 
earliest date on which the veteran's appeal may be considered 
to have been received is September 20, 1993, which, as 
previously noted is within the applicable 60 day period.  
However, in this case, the presumption is rebutted by clear 
evidence showing the actual date of mailing was after 
September 20, 1993.  The substantive appeal was signed and 
dated by the veteran "9/23/93."  Thus, the clear evidence 
of record shows that the substantive appeal was mailed no 
earlier than September 23, 1993, or three days after the 
deadline for filing a substantive appeal.

In view of the foregoing, the claims of service connection 
for gout and a stomach ulcer were properly dismissed by the 
Board on the basis of an untimely appeal.  Accordingly, the 
Board's December 1997 decision dismissing those appeals was 
not clearly and unmistakably erroneous because.  


ORDER

The motion to revise or reverse the December 1997 decision of 
the Board of Veterans' Appeals on the grounds of clear and 
unmistakable error is denied.  



		
	G. H. SHUFELT 
Member, Board of Veterans' Appeals