Citation Nr: 0003162 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-32 860A ) DATE ) ) THE ISSUE Whether a September 1997 decision of the Board of Veterans' Appeals denying service connection for diabetes mellitus should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Christopher P. Kissel, 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 September 1997. FINDINGS OF FACT 1. In a September 1997 final decision, the Board denied service connection for diabetes mellitus. 2. The pleadings submitted by the moving party alleging clear and unmistakable error in the September 1997 Board decision do not clearly and specifically set forth why the result in the decision would have been manifestly different but for the alleged error. CONCLUSION OF LAW The Board's September 1997 decision was not clearly and unmistakably erroneous for failing to award service connection for diabetes mellitus. 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. It should be noted that the above-cited regulatory authority was published with the specific intent to codify the current requirements for a viable claim of clear and unmistakable error that the United States Court of Appeals for Veterans Claims (the Court) has defined for claims of clear and unmistakable error in rating decisions. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994). Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 (1997). On this point, it should be noted that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." The notice of proposed rulemaking, 63 Fed. Reg. 27534, 27536 (1998), reflects that the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of [clear and unmistakable error]." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). The Board may therefore rely on the well-established precedent of the Court on what exactly constitutes a valid claim of clear and unmistakable error, such as is set forth in Russell, Damrel, Fugo, all supra. In pleadings prepared by the moving party in October 1997, April 1998 and April 1999, it was asserted that clear and unmistakable error was committed by the Board in its decision of September 1997 denying service connection for diabetes mellitus. The Board also denied service connection for heart disease and osteomyelitis of the second distal metatarsal of the right foot, but it appears that the moving party's motion of clear and unmistakable error was limited to the diabetes claim. The October 1997 pleading reflects the moving party's allegation that the Board misconstrued his contention regarding whether his diabetes mellitus was aggravated during service. He stated that the Board was mistaken in construing his claim that the amputation of his left index finger in service was a traumatic event that more than likely "exacerbated" his pre-existing diabetic disorder; rather, what should have been reported by the Board was his contention all along that the amputation of the finger constituted evidence of "aggravation" of his diabetes mellitus. On this point, he claimed aggravation on the basis that a "slow healing" process allegedly experienced in connection with the finger amputation operation established the existence of the diabetic condition in service. He took umbrage further with the Board's statement that he contended that he was told by a private physician "immediately" after service discharge that he was borderline diabetic. He stated that what he claimed was that "shortly after" service he was told this information by his physician, Dr. Carter, in 1961, which is substantiated by a statement submitted in support of his claim by Dr. Carter in October 1996. The moving party also plead in October 1997 that he was misled by an RO hearing officer in connection with certain "off-the-record" statements made at his September 1996 hearing on appeal. Specifically, he stated that the hearing officer told him that the diabetes claim "would be granted" upon receipt of a statement from Dr. Carter, which as noted above, was subsequently added to the appellate record in October 1996. The moving party also made pleadings alleging that the Board misconstrued statements he made in the past about whether he had "previous" versus "prolonged" symptoms of diabetes. He stated that he claimed the latter. In support of this statement, he pointed to medical records dated in 1975 that noted that he had high blood sugar levels. In substance, he asserted that the Board used his statements regarding his reported history of diabetes symptoms against him to deny the claim. The moving party's April 1998 pleading contained a restatement of his allegations of error based on what the RO hearing officer told him off the record in September 1996 regarding the submission of a medical statement from Dr. Carter. He also restated his theory regarding proof of diabetes shown in service based on his claim that his left index finger amputation was a "slow healing" wound. With these pleadings, he submitted copies of medical records, hearing transcript pages, photographs, and medical journal text extracts that were of record and considered by the Board in the September 1997 decision. The moving party's April 1999 pleading again restated his belief that he was misled by the RO hearing officer in September 1996. He added that he wished to proceed with his motion notwithstanding the fact that his representative had told him that he was new to the job and had gotten in too late to handle his matter. The Board notes that a development letter was sent to the moving party's representative in August 1999 regarding the opportunity to submit further argument on the motion, but no response was received as of the date of this decision. The Board's September 1997 decision denied entitlement to service connection for diabetes mellitus on the basis that the claim was not well grounded. The Board found no evidence, lay or medical, showing treatment or diagnosis of diabetes shown in service, and no competent medical evidence of record showing a nexus between the moving party's current diabetes condition and any disease or injury treated in service or within a year thereafter: Regarding the second element of a well- grounded claim, that is, evidence of disease or injury in service, the service medical records are devoid of complaints, treatment, or diagnoses regarding either diabetes mellitus, osteomyelitis, or heart disease. Further, there are no treatment records regarding diabetes mellitus or heart disease within a year of service discharge. It is noted that in a statement dated in May 1995, the veteran reported that a private physician indicated that he was borderline diabetic in 1957. However, at his September 1996 personal hearing before the RO, the veteran indicated that he was told that he was borderline diabetic some 6 or 7 years subsequent to service. This date was confirmed in an October 1995 letter from the private physician who indicated that he diagnosed borderline diabetes in 1961. Furthermore, on examination in January 1992, the veteran denied any prior diabetic symptoms. Additionally, it is noted that the evidence of record includes private and VA clinical records that date back to 1956 and there is no reference to diabetes. The Board has also considered the statements of fellow service personnel attesting to inservice injury of the left finger and the veteran's contentions and testimony regarding that a diabetic disability resulted from the inservice incidents, these assertions are deemed to be of little probative value for the purposes of diagnosis and etiology of a diabetic disability and as such do not serve to establish a well grounded claim. [citations omitted] The medical literature related to diabetes do not provide competent medical evidence to demonstrate that the veteran's current diabetes is in anyway related to his period of service or any incident therein. The fact remains that there is no competent evidence on file linking the veteran's current diabetes mellitus with foot ulcers, heart disease, and osteomyelitis of the second distal metatarsal of the right foot to service or to any incident of service, despite his assertions that such a causal relationship exists. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. [citations omitted]. As there is no evidence which provides the required nexus between military service and the current diabetes mellitus with foot ulcers, heart disease, and osteomyelitis of the second distal metatarsal of the right foot, service connection for these disorders is not warranted. [citations omitted]. See Board decision, pg. 6-7 (Sept. 29, 1997). On the basis of the arguments advanced in the pleadings cited above, the Board concludes that its decision of September 1997 was not clearly and unmistakably erroneous. As stated by the Court and adopted in the regulations governing motions alleging clear and unmistakable error in prior Board decisions, for such error to exist, 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." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). On this point, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of clear and unmistakable. See Fugo, supra, 6 Vet. App. at 43, 44 ("[i]t must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error'" and, there is "presumption of validity to otherwise final decisions" and the "presumption is even stronger" when such cases are collaterally attacked on the basis of error) and Luallen v. Brown, 8 Vet. App. 92, 95 (1995) (a disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error). In this case, the Board finds that the moving party has failed to set forth persuasive reasons why the Board decision of September 1997 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. Fugo, 6 Vet. App. at 44. The moving party's pleadings essentially reflect no more than disagreement as to how the facts were weighed or evaluated, which as stated above, does not amount to a valid claim of clear and unmistakable error. 38 C.F.R. § 20.1403(d)(3) (1999). This is so because notwithstanding his allegations of error based on the Board's phrasing of his contentions and statements made on appeal do not in any manner "clearly and specifically set forth" how the Board's alleged mistakes in this regard would compel the conclusion, to which reasonable minds could not differ, that the result in the decision would have been manifestly different but for the alleged error. As detailed above, the Board denied the claim on the basis that it was not well grounded as there was no evidence of diabetes shown in service or within a year thereafter, and because there was no medical-nexus evidence showing a link between currently diagnosed diabetes and any disease or injury treated in service, which would have included the left finger amputation. As the moving party was not competent to provide such medical nexus evidence himself, and Dr. Carter's statement of October 1996 was equivocal in this regard, the Board was correct in denying the claim as not well grounded. His pleadings regarding the alleged off-the-record statements of an RO hearing officer also are without merit for purposes of a valid claim of clear and unmistakable error as such statements, even if true, did not constitute evidence considered by the Board when it rendered its decision in September 1997. 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) (1999). Hence, any "off-the-record" statements made at a hearing on appeal would not be evidence before the Board. In any event, the Board can ascertain nothing of any substance in the moving party's pleadings setting forth persuasive reasons why the claim should have been allowed. 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 absolutely clear that a different result would have ensued but for the error, the error complained of cannot be clear and unmistakable. A careful read of the allegations of error advanced by the moving party herein lack these pleading requirements. Instead, his allegations represent, at best, expressions of disagreement with how the Board weighed or evaluated the evidence in its decision of September 1997, which as stated above, is not the "very specific and rare" kind of error that constitutes clear and unmistakable error. 38 C.F.R. § 20.1403(a) & (d)(3) (1999). Accordingly, the Board concludes that the moving party has failed to set forth clearly and specifically a legal or factual basis to support a reason why the result in the September 1997 Board decision would have been manifestly different but for the alleged errors. 38 C.F.R. §§ 20.1403(a), 20.1404(b) (1999). ORDER The motion alleging clear and unmistakable error in the Board's September 1997 decision is denied. A. BRYANT Member, Board of Veterans' Appeals