Citation Nr: 0005969 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 98-08 560A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the April 23, 1998, Board decision, which denied a claim of entitlement to service connection for peripheral neuropathy and chloracne as secondary to Agent Orange exposure. REPRESENATION Moving Party Represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The veteran had active service from February 1968 to February 1970. This matter comes before the Board from a May 1998 motion from the appellant for revision or reversal on the grounds of clear and unmistakable error (CUE) of an April 1998 Board decision that denied service connection for peripheral neuropathy and chloracne as secondary to Agent Orange exposure. FINDINGS OF FACT 1. In an April 23, 1998, decision the Board denied entitlement to service connection for acute and subacute peripheral neuropathy and chloracne as secondary to Agent Orange exposure, finding that the veteran's claim was not well grounded. 2. The veteran has alleged that service connection should have been granted as the evidence supported the claim; and that any lack of medical evidence was the VA's fault for refusing to acknowledge and diagnose disorders caused by exposure to Agent Orange; and that the Board failed to consider the doctrine of reasonable benefit. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the April 23, 1998, Board decision in failing to grant a claim for entitlement to service connection for acute or subactue peripheral neuropathy and chloracne as secondary to Agent Orange exposure 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 On April 23, 1998, the Board issued a decision that denied the veteran's claim of entitlement to service connection for acute or subacute peripheral neuropathy and chloracne as secondary to Agent Orange exposure. In May 1998, the veteran filed a motion for reconsideration of the April 1998 Board decision which was subsequently denied in July 1998. However, the veteran was informed at that time that his correspondence would also be considered as a request for revision of the April 1998 Board decision on the grounds of CUE. In March 1999, the Board notified the veteran that, it would not consider his motion for reconsideration as a motion for CUE unless he affirmatively replied within 60 days. A response was received from the veteran in March 1999, confirming the veteran's intent to have his earlier correspondence considered as a CUE motion. Thereafter, the Board forwarded a copy of the veteran's CUE motion to his representative and provided an opportunity to file a response. After review of the claims folder, the representative submitted a written response, dated February 2000, in support of the veteran's motion for revision of the Board's decision of April 23, 1998. 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 April's 1998 decision contains CUE. That determination found that the veteran had failed to present any competent medical evidence that he had been diagnosed to suffer from either acute or subacute peripheral neuropathy or chloracne. Thus, the Board held that the claim for service connection for acute or subacute peripheral neuropathy and chloracne as secondary to Agent Orange exposure was not well grounded; and therefore, was denied. In his May 1998 motion, the moving party essentially argued that the Board erred in that the evidence of record did establish that he had acute or subacute peripheral neuropathy and chloracne; and specifically, that he had been diagnosed to have "questionable peripheral neuromapathy [sic]"; that it was his belief that he had these disorder as a result of his exposure to Agent Orange but the VA had refused to diagnose such disorders due to a desire to deny Agent Orange claims. Such allegations do 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 respect, the veteran has raised a generic allegation of error concerning the April 1998 Board decision, but not necessarily the discrete issue of CUE. The veteran has alleged that the April 1998 decision was the product of error essentially because the decision failed to consider all the evidence, which he claimed demonstrated that he did suffer from acute or subacute peripheral neuropathy and chloracne. 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. With regard to the additional medical evidence submitted in March 1999, the Board notes that the VA hospital discharge note dated January 5, 1999, does indicate a diagnosis of "mild Peripheral Neuropathy"; however, a review for CUE in a prior Board decision must be based on the evidence and the law that existed when that decision was made. Thus, this subsequently dated evidence cannot constitute a basis for a finding of CUE. See 38 C.F.R. § 1403(a) (1999); see also Damrel, supra. Thus, after careful review of the evidence of record, the undersigned concludes that the moving party has not set forth specific allegations of error either of fact or law, in the April 23, 1998, decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the April 23, 1998, Board decision on the grounds of CUE is denied. C. P. RUSSELL Member, Board of Veterans' Appeals