Citation Nr: 0005461
Decision Date: 02/29/00	Archive Date: 09/08/00

DOCKET NO.  98-08 519A             DATE FEB 29, 2000

THE ISSUE

Whether there was clear and unmistakable error in the February 10,
1998 Board decision which denied service connection for the
residuals of an injury to the left arm.

REPRESENTATION 

Appellant represented by: Disabled American Veterans 

ATTORNEY FOR THE BOARD 

L. M. Barnard, Counsel INTRODUCTION

The veteran served in the Army National Guard from November 26,
1958 to September 12, 1960. He was on active duty for training from
March 21 to September 19, 1959 and from June 25 to July 9, 1960.

This matter is currently before the Board of Veterans' Appeals
(Board) on motion by the appellant as to whether there is clear and
unmistakable error in a February 10, 1998 Board decision.

FINDINGS OF FACT

1. The February 1998 Board decision found that the veteran had not
presented evidence of a well grounded claim for service connection
for the residuals of an injury to the left arm.

2. The appellant argues that the Board should have granted service
connection since the evidence of record had shown that his left arm
disability had been aggravated by his service; it was also argued
that the Board failed to assist the veteran when it did not obtain
a medical opinion as to in-service aggravation.

CONCLUSION OF LAW

The appellant's allegation of clear and unmistakable error in the
February 10, 1998 Board decision which denied service connection
for the residuals of an injury to the left arm 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 February 10, 1998 Board decision which concluded
that the veteran had not presented evidence of a well grounded
claim for service connection for the residuals of an injury to the
left arm.

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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 fined 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

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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.

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In this case, the moving party has not demonstrated that the
Board's February 1998 decision contains CUE. That determination,
after reviewing the record, found that the veteran had injured his
left elbow prior to service, undergoing corrective surgery in 1946.
At the time of his entrance into service, some limitation of
supination was noted, but it was commented that it would not
interfere with his ability to perform his duties. After reviewing
the statements of the veteran's wife and his former commanding
officer, the Board found that the veteran had re-injured the left
arm in June 1960. However, the evidence did not contain any
objective medical opinion that his service had caused an increase
in the underlying pathology of the left arm disability. Thus, it
was found that the claim was not well grounded.

The appellant argues that the evidence of record at the time of the
February 1998 Board decision had shown that his condition had been
aggravated by service; thus, he argues that the claim should have
been well grounded and granted. 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

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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).

The appellant noted that the August 1960 statement from his private
physician, which noted that his arm had been "sore" ever since some
"unusual activity" the week before had established that the left
arm disability had been aggravated by his period of service. The
Board had found that this statement did not indicate whether there
had been any increase in the underlying pathology and thus did not
support the contention that his disability had been aggravated by
service.

Initially, it is noted that this argument relates to the
interpretation and evaluation of the evidence. This argument
represents a clear-cut example of disagreement as to how that
evidence was interpreted and evaluation, and as such cannot
constitute a basis for a finding of CUE. See 38 C.F.R.
20.1403(d)(3) (1999); see also Luallen, supra.

Moreover, the finding of the Board that the above-noted statement,
even when combined with all the evidence of record, did not
establish competent evidence of in-service aggravation, was
consistent with and supported by the laws then applicable for
determining the well goundedness of claims for service connection.
Therefore, the Board finds that the denial of service connection
for the residuals of a left arm disability on the basis that the
claim was not well grounded for the lack of a competent medical
opinion as to aggravation, was a reasonable exercise of
adjudicatory judgment and did not involve CUE.

Finally, the appellant has argued that the Board failed to fully
assist the veteran by not obtaining a medical opinion as to
aggravation. However, absent a well

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grounded claim, there is no duty to assist. See 38 U.S.C.A. 5107(a)
(West 1991). Moreover, claiming a failure in the duty to assist 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, either of fact or law, in the February 10, 1998 decision by
the Board. Accordingly, in the absence of any additional
allegations, the motion is denied.

ORDER

The motion for revision of the February 10, 1998 Board decision on
the grounds of CUE is denied.

C. P. RUSSELL 
Member, Board of Veterans' Appeals

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