Citation Nr: 0006773 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 99-20 198A ) DATE ) ) THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a June 1988 decision of the Board of Veterans' Appeals to deny the claim of entitlement to service connection for a chronic pulmonary disorder. 2. Whether there was clear and unmistakable error (CUE) in a July 1990 decision of the Board of Veterans' Appeals to deny the claims of entitlement to effective dates prior to January 8, 1986, for the grant of service connection for post- traumatic stress disorder, and tinnitus. REPRESENTATION Moving Party Represented by: John C. Sims, Attorney at Law ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The moving party is a veteran who served on active duty from June 1941 to September 1945. This case comes before the Board of Veterans' Appeals (Board) on motion by the moving party alleging clear and unmistakable error (CUE) in June 1988, and July 1990 Board decisions as to the respective issues noted above. Preliminarily, it is noted that a motion for revision of a decision based on CUE must meet certain requirements in order to qualify for review by the Board. 38 C.F.R. § 20.1404(a) (1999) requires that the motion must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. In November 1999, the Board directed a letter to the attorney for the moving party and asked that he clarify whether he wished to proceed with the adjudication of the construed claims of CUE in the June 1988 and July 1990 Board decisions. The attorney was provided with a copy of the final CUE regulations, and told to respond within 30 days, and that if no response was received, the Board would assume that the attorney wished to proceed with the adjudication of CUE and a decision would be entered. In November 1999, the moving party's attorney did respond by indicating that he wished the Board to proceed with the adjudication of the construed claim of CUE in the prior Board decisions. The Board finds that the moving party has met the necessary requirements to qualify for review by the Board, and that the motion is ready for such review. 38 C.F.R. § 20.1404(a) (1999). FINDINGS OF FACT 1. In June 1988, the Board denied the claim of entitlement to service connection for a chronic pulmonary disorder. 2. The Board's decision of June 1988 to deny entitlement to service connection for a chronic pulmonary disorder was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. 3. In July 1990, the Board denied the claims of entitlement to effective dates prior to January 8, 1986, for the grant of service connection for post-traumatic stress disorder, and tinnitus. 4. In a January 1992 Memorandum Decision, the July 1990 Board decision was affirmed by the Court of Veterans Appeals (now U.S. Court of Appeals for Veterans Claims). CONCLUSIONS OF LAW 1. The Board's June 1988 decision to deny service connection for a chronic pulmonary disorder did not contain CUE. 38 U.S.C.A. § 7111 (West Supp. 1999); and 38 C.F.R. §§ 20.1400 - 20.1411 (1999). 2. The motion for revision of the Board's July 1990 decision on the basis of CUE is denied as without legal merit. 38 U.S.C.A. §§ 7111, 7252 (West Supp. 1999); and 38 C.F.R. §§ 20.1400(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS CUE in the June 1988 Board Decision In June 1988, the Board entered a decision to deny, in pertinent part, the moving party's claim of entitlement to service connection for a chronic pulmonary disorder. That decision was based upon findings that a chronic pulmonary disorder was not shown in service; was initially documented several decades after service; and was unrelated to service- connected disabilities. The Board concluded that the moving party did not have a pulmonary disorder that was the result of a disease or injury incurred in or aggravated by service, nor was such a disorder proximately due to or the result of a service-connected disability. It was thus found that entitlement to service connection for a chronic pulmonary disorder was not warranted. The only arguments submitted by the moving party and his attorney with respect to his motion for revision of the 1988 Board decision based on CUE, were those which were advanced in conjunction with a simultaneous claim on appeal to the Board from decisions of the VA Waco, Texas, Regional Office. The Board deems those allegations to be part of the current motion for CUE review of the June 1988 Board decision. The moving party and his attorney have argued that when the moving party was discharged from service in 1945, his discharge documents erroneously indicated that he had no service-related disabilities, when in reality, he suffered from post-infective asthenia that was related to his service- connected malaria. They further assert that, contrary to the finding of the Board in its 1988 decision, the existence of asthenia in service was tantamount to a respiratory disorder, thereby demonstrating that a chronic pulmonary disorder did exist upon the moving party's separation from service in 1945. The appellant and his attorney concluded that but for the error in his discharge papers, the appellant would have been service-connected for that disorder since separation, and that at the least, a chronic pulmonary disorder should have been found to have been related to service in the Board's 1988 decision, thereby warranting service connection. Rule 1403, which is found at 38 C.F.R. § 20.1403 (1999), 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 further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the Court. More specifically, it was observed that Congress intended that the VA adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE, such as Fugo v. Brown, 6 Vet. App. 40 (1993). In this case, the moving party has failed to provide a basis for his conclusion that the Board's June 1988 decision contained CUE other than, at best, to raise previous contentions regarding the nature and extent of his disability. 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)). Written and oral argument submitted by the moving party and his attorney essentially disagrees with how the facts were weighed and evaluated in June 1988. Specifically, the moving party first questioned the Board's interpretation of the medical evidence regarding the veteran's in-service malaria and the resulting infective asthenia ostensibly claiming that the Board should have recognized this symptomatology as being tantamount to a chronic pulmonary disorder in service. Without considering the restriction on the Board's ability to interpret medical evidence related to etiology of a claimed disorder, the Board finds that the moving party's allegations represents a disagreement as to the evaluation of the evidence, and is a specified example of a situation that is not CUE. 38 C.F.R. § 20.1403(d)(3) notes that a disagreement as to how the facts were weighed or evaluated does not constitute CUE. In essence, the moving party has not alleged the existence of an error that is "undebatable" nor of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Russell, 3 Vet. App. at 313-14. The Board wishes to 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). Clear and unmistakable error "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). After review of the evidence of record, the undersigned concludes that the moving party has not set forth specific allegations of error, of either fact or law, in the June 1988 decision by the Board to deny service connection for a chronic pulmonary disorder that would lead one to conclude that any such error was undebatable. Accordingly, in the absence of any additional allegations, the motion is denied. CUE in the July 1990 Board Decision With respect to the moving party's allegations of CUE in the July 1990 Board decision, it is noted that the decision, in pertinent part, denied the moving party's claims of entitlement to effective dates earlier than January 8, 1986, for a 30 percent evaluation for post-traumatic stress disorder, and a 10 percent evaluation for tinnitus. The July 1990 Board decision was affirmed by the Court of Veterans Appeals (now U.S. Court of Appeals for Veterans Claims) (hereinafter, Court) in a January 1992 Memorandum Decision. Pursuant to 38 C.F.R. § 20.1400(b)(1), all final decisions of the Board are subject to review on the basis of an allegation of CUE, except those that have been appealed to and decided by a Court of competent jurisdiction. Since the Court of Veterans Appeals is obviously a Court of competent jurisdiction for the purpose of the review of Board decisions [38 U.S.C.A. § 7252], and since the Court affirmed the Board's July 1990 decision, there is no legal right to challenge that Board decision on the basis of CUE. 38 C.F.R. § 20.1400(b)(1). The moving party's motion must therefore be denied as without legal merit. ORDER The motion for revision of the June 1988 Board decision on the grounds of CUE is denied. The motion for revision of the July 1990 Board decision on the grounds of CUE is denied as without legal merit. Thomas J. Dannaher Member, Board of Veterans' Appeals