Citation Nr: 0007019 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-06 874A ) DATE ) ) THE ISSUE Whether a March 1998 decision of the Board of Veterans' Appeals determining as countable income the receipt of a Workers' Compensation settlement payment for nonservice connected pension purposes, and thereby determining that the reduction of pension benefits for the period of July 1, 1996 through June 1997 was proper, should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: The American Legion ATTORNEY FOR THE BOARD W. Sampson, Associate 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 decision, the Board determined that the receipt of a Workers' Compensation settlement payment was countable income for nonservice connected pension purposes, and the reduction of pension benefits for the period of July 1, 1996 through June 1997 was proper. 2. 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 the Board's claimed error of fact or law and why the result in the decision would have been manifestly different but for the alleged error. CONCLUSION OF LAW The motion is insufficient to support revision of the Board's March 1998 decision on the basis of clear and unmistakable error. 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 CONCLUSION 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) (emphasis added). 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). 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. In pleadings prepared by the moving party in May 1998, April and October 1999, it was asserted that the 1998 Board committed clear and unmistakable error because a Workers' Compensation settlement payment should not have been considered as countable income so as to reduce the payment of nonservice connected pension benefits for the one year period beginning July 1, 1996. The moving party argues that the settlement payment was to compensate him for being out of work due to disability for a period of time before he applied for VA nonservice connected pension benefits. In the February 1998 decision, the Board noted that "[a]ccording to the regulatory criteria in determining annual income, all payments of any kind or from any source shall be counted as income during the 12- month annualization period in which received or specifically excluded under 38 C.F.R. § 3.272." The Board then listed all exclusions from countable income, which did not include Workers' Compensation payments, and noted that "the law is very clear and leaves no alternative but to consider the veteran's Workers' Compensation settlement payment as countable, and not excludable, income for the purpose of determining his entitlement to pension." See Board decision, p. 5 (March 25, 1998). The Board concludes that the moving party has failed to set forth specific reasons as to why the Board's decision of February 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. As detailed above, the Board counted as income the receipt of Workers' Compensation payments as required by the applicable regulations. 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 clear that a different result would have ensued but for the error, the error complained of cannot be clear and unmistakable. While the moving party disagrees with the Board's conclusion in 1998 that Workers' Compensation payments should be counted as income for purposes of nonservice connected pension benefits, he has not pointed to any error of fact or law made by the Board in reaching that conclusion. Without any specific allegation of error in fact or law in the Board decision, the motion is insufficient to support revision of the Board's March 1998 decision on the basis of clear and unmistakable error and the motion must be denied. ORDER The motion alleging clear and unmistakable error in the Board's March 1998 decision is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals