Citation Nr: 0007040 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 97-32 625A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the May 14, 1982 Board of Veterans' Appeals (Board) decision which denied an increased evaluation for the service-connected anxiety and depressive neurosis (now diagnosed as post traumatic stress disorder [PTSD]) and which denied entitlement to a total disability evaluation due to individual unemployability based on service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from April 1968 to October 1970. This matter is currently before the Board on motion by the appellant as to clear and unmistakable error in a May 14, 1982 Board decision. FINDINGS OF FACT 1. The May 14, 1982 decision found that the evidence had not demonstrated entitlement to an evaluation in excess of 30 percent for the service-connected psychiatric disorder and had not shown entitlement to a total disability evaluation due to individual unemployability based on service-connected disabilities. 2. The appellant has alleged that the evidence that was of record at the time of the May 1982 Board decision had demonstrated that he was 100 percent disabled and unable to work because of his service-connected psychiatric disorder; and that the Board had failed in the duty to assist by not obtaining all VA outpatient treatment records prior to rendering the 1982 decision. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the May 14, 1982 Board decision in failing to grant an increased evaluation and entitlement to a total rating due to individual unemployability 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, 1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has argued that there was clear and unmistakable error (CUE) in the May 14, 1982 Board decision, which had concluded that an increased evaluation for the service-connected psychiatric disorder and a total rating due to individual unemployability based on service-connected disabilities were not warranted. 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 May 1982 decision contains CUE. That determination had found that neither entitlement to an increased evaluation for the service-connected psychiatric disorder or entitlement to a total rating based on individual unemployability had been established. The moving party has argued that the evidence of record at the time of the May 1982 Board decision had shown that entitlement to the claims raised had been established. He stated that the evidence then of record had shown that he was 100 percent disabled by his mental condition and was unable to work. 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 May 1982 decision had included VA outpatient treatment records developed between 1975 and 1980, a psychiatric evaluation conducted in February 1980 and a VA examination performed in June 1980, as well as two employment statements submitted by the veteran. As noted in the Board decision, these records suggested that the veteran had suffered from a psychosis whose relationship to the then service-connected depressive neurosis was unclear due to the veteran's refusal to cooperate with the June 1980 examination and his unwillingness to report for further evaluation. Given this, it was found that a complete evaluation of his service- connected disorder could not be ascertained due to his refusal to cooperate and the claim for an increased evaluation was denied. In regard to the claim for individual unemployability, it was noted that the veteran had himself stated in two employment statements that he had terminated his employment due to an on-the-job back injury. He had not indicated that his psychiatric disorder had played a role in ceasing employment. Accordingly, the failures to conclude that an increased evaluation for the service-connected psychiatric disorder was warranted or that entitlement to a total rating due to individual unemployability based on service-connected disabilities had been established are not "undebatable" errors. The May 1982 Board decision was, therefore, consistent with and supported by the law then applicable for determining entitlement to the benefits sought. Therefore, the Board finds that the denials of the claims in May 1982 were reasonable exercises of adjudicatory judgment and did not involve CUE. Similarly, it also noted that the arguments raised by the veteran relate to the interpretation and evaluation of the evidence. In this respect, the veteran has alleged that the May 1982 decision was in error essentially because the decision failed to find that the evidence had shown entitlement to a 100 percent disability evaluation and individual unemployability. 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. The veteran also alleged that the Board had not obtained all relevant VA outpatient treatment records prior to making its decision. However, a review of the file noted that numerous records form the Rivera Beach VA Medical Center, spanning the period from 1975 to 1980, were part of the claims folder at the time of the May 1982 Board decision. Therefore, it is does not appear that there was any failure in the duty to assist. In any event, a claim that the duty to assist was breached is not a basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(2) (1999). After a careful review of the evidence of record, it is concluded that the moving party has not set forth specific allegations of error, of either fact or law, in the May 14, 1982 decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the May 14, 1982 Board decision on the grounds of CUE is denied. C. P. RUSSELL Member, Board of Veterans' Appeals