Citation Nr: 0007179 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-05 249A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the April 10, 1998, Board decision, which denied entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with treatment beginning April 8, 1997. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant served on active duty from September 1961 to March 1970. This matter is currently before the Board of Veterans' Appeals (Board) on motion by the appellant as to clear and unmistakable error in an April 10, 1998, Board decision. FINDINGS OF FACT 1. In an April 10, 1998, decision the Board denied entitlement to payment of unauthorized medical expenses incurred coincident with a period of private treatment beginning April 8, 1997, finding that the appellant's claim was not well grounded. 2. The appellant has alleged that payment of the hospital expenses incurred beginning on April 8, 1997 should have been made by VA because he needed emergency bypass surgery and could not be moved to a VA facility. He has not alleged that he has met the criteria for payment or reimbursement of these medical expenses. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the April 10, 1998, Board decision in failing to grant a claim for payment or reimbursement of the unauthorized medical expenses incurred coincident with a period of private treatment beginning April 8, 1997, 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 CONCLUSION The appellant has argued that there was clear and unmistakable error ("CUE") in the April 10, 1998 Board decision, which concluded that a well grounded claim for payment or reimbursement of medical expenses incurred coincident with a period of private treatment beginning in April 8, 1997, had not been submitted. 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 April 1998 decision contains CUE. That determination found that the veteran had not alleged that he met all of the criteria for payment of the medical expenses in question. The moving party argues initially that the evidence of record at the time of the April 1998 decision established that he was treated for an emergent condition, without arguing that the treatment was rendered for a service connected disorder, for a disability that aggravating a service-connected disorder, or that he is in receipt of a total rating by reason of service-connected disabilities. 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 April 1998 decision were that service connection is in effect for posttraumatic stress disorder (PTSD), rated 30 percent disabling, but that the veteran was treated at a private facility beginning April 8, 1997, for coronary artery disease. As noted in the Board's decision, the veteran failed to allege that he met all of the criteria for payment of the unauthorized medical expenses. Accordingly, the failure to conclude that the veteran had submitted a plausible claim is not an "undebatable" error. The April 1998 Board decision was, therefore, consistent with and supported by the law then applicable for determining whether the veteran had met his burden to render a plausible claim for payment of the medical expenses incurred coincident with a period of private treatment beginning April 8, 1997. 38 U.S.C.A. § 1728 (West 1991 & Supp. 1995); 38 C.F.R. § 17.120 (1996); Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, the Board finds that the denial of payment of unauthorized medical expenses incurred coincident with a period of private treatment beginning April 8, 1997, was a reasonable exercise of adjudicatory judgment and did not involve CUE. Similarly, the undersigned would also note 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 April 1998 Board decision, but not necessarily the discrete issue of CUE. The veteran has alleged that the April 1998 decision was the product of error essentially because the decision failed to consider that the disorder for which the veteran was treated was life threatening and emergent in nature. 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 April 10, 1998, decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the April 10, 1998, Board decision on the grounds of CUE is denied. M. G. MAZZUCCHELLI Acting Member, Board of Veterans' Appeals