Citation Nr: 0007440 Decision Date: 03/20/00 Archive Date: 09/08/00 DOCKET NO. 98-15 543A DATE MAR 20, 2000 THE ISSUE Whether there was clear and unmistakable error in an August 1998 decision of the Board of Veterans' Appeals which denied service connection for mechanical chest wall pain. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from February 4, 1994, to May 26, 1994. This matter is currently before the Board of Veterans' Appeals (Board) on motion by the veteran as to clear and unmistakable error in an August 6, 1998, Board decision. FINDINGS OF FACT 1. The August 6, 1998, Board decision denied the moving party's claim for service connection for mechanical chest wall pain, finding that this condition pre-existed service, that the presumption of soundness had been rebutted, and that this condition was not permanently aggravated by service. 2. The veteran has alleged no specific error in the August 6, 1998, Board decision. CONCLUSION OF LAW The veteran's allegation of clear and unmistakable error in the August 6, 1998, Board decision 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. 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that clear and unmistakable error was committed in an August 6, 1998, Board decision which denied his claim for service connection for mechanical chest wall pain. This decision found that mechanical chest wall pain pre-existed service, that the presumption of soundness had been rebutted, and that this condition had not been aggravated by service. 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). 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- 2 - 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. 20.1404(b) (1999). The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 38 C.F.R. 20.1400 (1999). 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 3 - 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. Anew 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). 4 - A review of the argument received from the veteran subsequent to the August 6, 1998, Board decision does not reveal any specific allegations of error of fact or law in that Board decision. Instead, these statements express disagreement as to how the facts were weighed or evaluated. Such arguments are not clear and unmistakable error. 38 C.F.R. 20.1403(d)(3). Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. Thus, the additional medical evidence dated after the August 6, 1998, Board decision and received in June 1999 cannot form the basis for revision of the Board decision in question. 38 C.F.R. 20.1403(b)(1) (1999). As for the medical records received in June 1999 but dated prior to the August 6, 1998, Board decision, such evidence is considered to have been part of the record reviewed by the Board under the provisions of 38 C.F.R. 20.1403(b)(2). However, as this evidence only shows current treatment for chest pain and does not address the question of whether this condition pre-existed service or was permanently aggravated by service, CUE cannot be found on the basis of this evidence. The regulations governing CUE in Board decision were intended to codify the existing caselaw as to current requirements for a viable claim of CUE. In this regard, in view of the standard that error must be undebatable and about which reasonable minds can not differ, the "benefit of the doubt" rule of 38 U.S.C.A. 5107(b) can never be applicable; an error either undebatably exists or there was no error within the meaning of 38 C.F.F, 3.105(a). Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). Therefore, in the absence of the specific type of allegations required under 38 C.F.R. 20.1404(b), the motion must be denied. 5 - ORDER The motion for revision of the August 6, 1998, Board decision on the grounds of CUE is denied. JOHN FUSSELL Acting Member, Board of Veterans' Appeals 6 -