Citation Nr: 0007731 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-05 200A ) DATE ) ) THE ISSUE Whether a February 19, 1998, decision of the Board of Veterans' Appeals (Board) denying entitlement to a compensable disability rating for service-connected hearing loss of the right ear 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 P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from September 1962 to October 1968. This matter comes before the Board from an April 1998 motion from the veteran for revision or reversal on the grounds of clear and unmistakable error (CUE) of a February 1998 decision of the Board which denied the above-noted claim. FINDINGS OF FACT 1. In a February 1998 decision, the Board denied entitlement to a compensable disability rating for service-connected hearing loss of the right ear. 2. In an April 1998 motion for revision or reversal of the Board's February 1998 decision, the veteran has not pointed to any error of fact or any error in the application of the law in the February 1998 decision. CONCLUSION OF LAW The allegations advanced in the veteran's April 1998 motion for revision or reversal of the Board's February 19, 1998, decision denying entitlement to a compensable disability rating for service-connected hearing loss of the right ear do not meet the pleading requirements for a valid claim of CUE. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(d)(3) and 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background In a February 19, 1998, decision, the Board denied, inter alia, entitlement to a compensable disability rating for service-connected hearing loss of the right ear. Evidence considered by the Board included a November 1993 audiological examination report from the Tuscaloosa VA Medical Center (VAMC) and a July 1997 audiological examination report from the Birmingham VAMC. Both examination reports showed that the veteran wore hearing aids. In April 1998, the veteran filed a motion for reconsideration of the February 1998 Board decision. He stated that the Board decision did not mention the fact that he was supplied hearing aids by the Tuscaloosa VAMC for his service-connected hearing loss. He further stated that he felt that not all of the information that was available was considered by the Board and that VA did not comply with its duty to assist him. The veteran's motion for reconsideration was denied by the Board in May 1998 and he was notified that his statement was being construed as a request for revision of the February 1998 Board decision on the grounds of CUE. In an August 26, 1998, VA Form 9, the veteran stated that VA was "remiss in not using all the information available to them when making a decision on my claim. I feel that if you go back to Birmingham VAMC you will get more than enough information to verify my claim." In October 1998, the RO obtained the veteran's treatment records from the Birmingham and Tuscaloosa VAMCs, which included copies of the November 1993 and July 1997 VA reports of audiological examination that were considered by the Board in February 1998. In addition, an August 24, 1998, VA audiological examination report from the Birmingham VAMC was associated with the claims file. In April 1999, the Board notified the veteran that, despite the May 1998 letter, it would not consider his motion for reconsideration as a motion for CUE unless he informed VA within 60 days that he wanted it to be construed as a motion for CUE. The veteran was provided a copy of the final CUE regulations. He thereafter replied in May 1999, saying that he wished the Board to consider his "motion for reconsideration on effective date." He asked for his representative to assist him. In August 1999, the Board forwarded a copy of the veteran's CUE motion to his representative, and provided an opportunity to file a response. The representative did not respond. II. Legal analysis The Board has original jurisdiction to determine whether clear and unmistakable error exists in a prior final Board decision. Such review may be initiated by the Board on its own motion or by a party to the decision. 38 C.F.R. § 20.1400. A party disagreeing with the Board's denial of a motion for revision based on clear and unmistakable error in a prior Board decision can appeal that determination to the U.S. Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals). 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1409(d). A claim of clear and unmistakable error is not a claim or application for Department of Veterans Affairs (VA) benefits. Therefore, duties associated with such claims or applications are inapplicable, including notification under 38 U.S.C.A. § 5103(a) of the existence of evidence which might complete a claimant's application for benefits, the requirements of well-groundedness and the VA's duty to assist in the development of such claims. 38 C.F.R. § 20.1411(c) and (d). In addition, neither the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b), nor the provisions for reopening claims on the grounds of new and material evidence under 38 U.S.C.A. § 5108 apply to clear and unmistakable error claims. 38 C.F.R. § 20.1411(a) and (b). A clear and unmistakable error motion is not an appeal and therefore, with certain exceptions, it is not subject to the provisions of 38 C.F.R. Parts 19 and 20, which pertain to the processing and disposition of appeals. 38 C.F.R. § 20.1400. Additionally, Board decisions which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have been subsequently decided by a court of competent jurisdiction are not subject to review on the basis of clear and unmistakable error in Board decisions. 38 C.F.R. § 20.1400(b). There are stringent pleading requirements for CUE claims. This is because a claim for CUE is a collateral challenge to an otherwise final decision as to which there is a strong presumption of validity. See 64 Fed. Reg. 2137 (January 13, 1999); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993). VA regulations specifically define what constitutes a valid claim for clear and unmistakable error, and they provide, in pertinent part: § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (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 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 the 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. § 20.1404 Rule 1404. Filing and pleading requirements; withdrawal. . . . (b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable 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. 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 which fail to comply with the requirements set forth in this paragraph shall be denied. 38 C.F.R. §§ 20.1403, 20.1404 (1999). In his motion, the veteran asserted in essence that the medical evidence of record supported his claim. The veteran essentially disagrees with how the Board weighed or evaluated the facts. Such contentions are insufficient to satisfy the criteria for a motion for revision of the prior Board decision on the basis of clear and unmistakable error. 38 C.F.R. §§ 20.1403(d)(3) (1999). In addition, the motion did not contain any allegations of errors of law because the appellant did not argue or allege that any statutory or regulatory provision extant at the time of the February 1998 decision was incorrectly applied by the Board. 38 C.F.R. § 20.1403(a) (1999). All of the veteran's allegations are too non-specific to meet the regulatory pleading requirements for a motion for CUE in a prior Board decision. 38 C.F.R. § 20.1404(b) (1999). The veteran also argues that VA failed in its duty to assist him because it did not obtain all of his VA treatment records, specifically from the VAMCs in Tuscaloosa and Birmingham. As indicated above, relevant documents possessed by VA, including VA treatment records, are considered part of the record that existed at the time of the Board decision that is the subject of the CUE claim if the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b)(2) (1999). However, in October 1998 the RO obtained records from these facilities, including copies of the November 1993 (Tuscaloosa) and July 1997 (Birmingham) VA examination reports, which were considered by the Board in February 1998. There is no indication in the record that additional documents reasonably exist, and these reports appear to be the evidence referenced by the veteran. Submitting evidence previously considered does not advance the veteran's claim of clear and unmistakable error. Furthermore, failure of the duty to assist does not constitute CUE. 38 C.F.R. § 20.1304 (d)(2) (1999). The RO also obtained an August 1998 VA examination report (Birmingham) that had not been obtained previously. This evidence was not before the Board in February 1998. However, the record that existed when that decision was made includes only relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision. 38 C.F.R. § 20.1403(b)(2) (1999). Here, the veteran's file was transferred to the Board on January 23, 1998, and this examination report, dated approximately seven months after the Board's February 1998 decision, could not reasonably be expected to be part of the record. Submitting evidence that did not come into existence until after the 1998 Board decision cannot support a claim of clear and unmistakable error, in that it does not tend to show that the correct facts, as they were known at the time, were not before the Board in February 1998. The veteran's May 1999 statement provides no basis for a different result. It asks for reconsideration of an issue (an unspecified effective date) not addressed in the February 1998 Board decision. It cites no error of fact or law in the February 1998 Board decision on the issue of entitlement to compensable rating for right ear hearing loss. Because the allegations advanced in the veteran's April 1998 motion either do not meet the pleading requirements to set forth clearly and specifically the alleged CUE of fact or law in the Board decision or because, at best, the allegations in the motion express no more than a disagreement with how the facts were weighed or evaluated, the April 1998 motion for revision or reversal of the Board's February 1998 decision based on CUE must be denied. 38 C.F.R. §§ 20.1403(d)(3), 20.1404(b) (1999). ORDER The April 1998 motion for revision or reversal of a February 1998 decision of the Board denying entitlement to a compensable disability rating for service-connected hearing loss of the right ear is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals