Citation Nr: 0007308 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-05 254A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the January 1998 Board decision which determined that new and material evidence was not submitted to reopen the claim of entitlement to service connection for a psychosis. REPRESENTATION Veteran Represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The veteran served on active duty from July 1952 to May 1954. This case comes before the Board on motion by the veteran alleging CUE in a Board decision dated in January 1998. FINDINGS OF FACT 1. In January 1998, the Board issued a decision in which it was concluded that the veteran was adequately notified of the March 1956, March 1958, and March 1959 rating decisions, and such rating decisions were final. The Board found that the veteran had not submitted new and material evidence and denied the veteran's application to reopen the claim for entitlement to service connection for a psychosis. 2. The Board's decision of January 1998 was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. CONCLUSION OF LAW The Board's January 1998 decision does not contain CUE. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1400 - 20.1411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran alleges error in a January 1998 Board decision. In the interest of clarity, the Board will initially review the relevant factual background; describe the pertinent law and regulations; and then analyze the veteran's contentions and render a decision. Factual and Procedural Background In December 1955, the veteran was hospitalized at a VA facility due to a psychosis. He was brought to the hospital by a county sheriff. On admission, he was described as being badly confused and incoherent. As of February 6, 1956, he was "disoriented as to time, place and person, markedly depressed, confused, rambling, incoherent and irrelevant in his conversation." The veteran applied for service connection for psychosis shortly after his hospital admission. In a March 1956 rating decision, the Department of Veterans Affairs Regional Office in Fargo, North Dakota (the RO)denied entitlement to service connection for a psychosis. On March 13, 1956, a letter of notification of the denial was sent to the veteran's father at the veteran's address of record. The letter indicated that service connection was denied, as there was no evidence of treatment of that condition in service. On March 26, 1956, a letter of notification of the denial of the veteran's claim for service connection was sent to attention of the Contact representative at the VA hospital where the veteran was hospitalized. In a March 1958 rating decision, the RO denied the veteran's claim for entitlement to service connection for a psychosis to include schizophrenic reaction. On March 13, 1958, a letter of notification of the denial was sent to the veteran. The letter indicated that no change was warranted in the previous determination, which was confirmed and continued. The veteran was informed of his right to appeal. In a March 1959 rating decision, the RO denied entitlement to service connection for psychosis. On March 27, 1959, a letter of notification of the denial was sent to the veteran. The letter indicated that no change was warranted in the previous determination, which was confirmed and continued. The veteran was informed of his right to appeal. In the January 1998 decision which is the subject of the veteran's motion, the Board determined that he did not submit new and material evidence to reopen the claim for entitlement to service connection for a psychosis. The Board indicated that the rating decisions dated in March 1956, March 1958 and March 1959, denied entitlement to service connection for a psychosis. The Board determined that the RO notified the veteran of these decisions and found that the veteran did not file an appeal. The Board determined that such rating decisions were final and were not subject to revision on the same factual basis. The Board indicated that in order to reopen his claim, the veteran must present new and material evidence pursuant to 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156(a) (1997). The Board determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for a psychosis. The veteran's appeal was denied. Pertinent Law and Regulations 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. Pursuant to § 20.1404(b), the motion alleging CUE in a prior Board decision 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 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. Rule 1403, which is found at 38 C.F.R. § 20.1403 (1999), 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 further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the Court. More specifically, it was observed that Congress intended that the VA adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE, such as Fugo v. Brown, 6 Vet. App. 40 (1993). Analysis The veteran's contentions The veteran asserts that the Board's January 1998 decision contained CUE in essence because the decision addressed the wrong issue. The veteran contends that the issue that the Board should have addressed was entitlement to service connection for a psychosis, not whether the veteran submitted new and material evidence to reopen the claim for entitlement to service connection for a psychosis. The veteran argues, in essence, that new and material evidence comes into play only when there is a final decision, and in this case, he alleges that there were no final decisions. The veteran asserts that the March 1956, 1958, and 1959 rating decisions were not final due to lack of notification. Therefore, according to the veteran, the first conclusion of law and the first, second, and third findings of fact in the Board's January 1998 decision were clearly erroneous. The veteran argues that the March 1956 rating decision is not final due to inadequate notification. The veteran points out that the veteran's father filed a claim on the veteran's behalf. The veteran argues that the letter from the RO to the veteran's father informed him that service connection for psychosis was denied because there was no evidence of treatment for this condition in service. The veteran argues that 38 C.F.R. § 3.7 (1956) provided that the claimant would be notified upon completion of adjudicative action "of the provisions thereof." The veteran asserts that this was not accomplished because notification to the father was silent regarding presumptive service connection, which was addressed by the rating board. The veteran contends that the father, who was apparently the veteran's fiduciary, was not notified "of the provisions thereof." Thus, according to the veteran, the March 1956 rating decision is not final due to lack of notification. The veteran argues that the second and third findings of fact and the first conclusion of law in the January 1998 Board decision were erroneous because the underlying decisions were not final due to the absence of notification. The veteran also argues that all notifications prior to 1958 were sent to the veteran's father because the veteran was hospitalized. The March 1958 notification stated that no revision was warranted in the "previous determination." The veteran states that since there had been four previous determinations, three which pertained to pension and one pertaining to compensation, the RO should have specified which decision was the previous determination. The RO did not specify which rating decision was being referred to and nothing in the RO's 1958 letter of notification informed the veteran that his claim was denied. The veteran argues that due to the lack of and/or inadequacy of the notification, the 1958 rating decision is not final. The veteran asserts that the 1959 rating decision contains the same deficiency. Thus, he contends that the January 1998 Board decision was clearly erroneous as to the issue of whether new and material evidence had been received to reopen the claim for entitlement to service connection for a psychosis, and the proper issue should have been entitlement to service connection for a psychosis on the merits. Discussion In the January 1998 decision, the Board set forth the following facts and analysis. Entitlement to service connection for a psychosis was denied in a March 1956 rating decision. Notice of the March 1956 rating decision was provided to the veteran in March 1956 and he did not appeal. By rating decision dated in March 1958, the RO again denied service connection for a psychosis. In a March 1958 letter, the RO informed the veteran of this determination and that all the evidence of record had been considered. The veteran did not appeal. Entitlement to service connection for a psychosis was again denied by rating decision dated in March 1959. By letter dated March 1959, the RO informed the veteran of this decision and stated that all evidence of record had been reviewed. The veteran did not file an appeal. The Board determined that because the veteran did not file a timely appeal of the March 1956, March 1958 or March 1959 rating decisions, these determinations became final. The Board reviewed the evidence submitted by the veteran and determined that this evidence was not new and material and the veteran's appeal was denied. The veteran is basically arguing that the Board erred in the January 1998 decision when it determined that the veteran had been properly notified of the March 1956, 1958, and 1959 and that those ratings decisions were accordingly final. The Board wishes to 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 v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo, 6 Vet. App. at 43. A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In this case, the veteran's position is that the Board misinterpreted the evidence of record, and should have determined that the letters of notification, sent by the RO to the veteran, in 1956, 1958, and 1959 were inadequate. The veteran is basically disagreeing with how the Board evaluated the evidence with respect to the issue of whether the veteran was notified of the 1956, 1958, and 1959 rating decisions. The veteran is arguing that the Board should have interpreted the evidence in a different way. There is no evidence that the Board's interpretation of the facts in the January 1998 decision was "undebatably incorrect" in that reasonable minds could only conclude that the veteran was not properly notified of the rating decisions dated in 1956, 1958, and 1959. See Russell, 3 Vet. App. at 313. There is evidence which supports the Board interpretation of the facts in the January 1998 decision and there is a factual basis for the Board's determination. The letter of notification dated in 1956 clearly indicated that service connection was denied for psychosis. The letters of notification dated in 1958 and 1959 informed the veteran that his claim for disability benefits had been reviewed and no change in the previous determination of the claim was warranted. The letters informed the veteran of his right to appeal. There is no evidence of record which shows that such letters were returned to the RO as undeliverable. Thus, the Board finds that reasonable minds could conclude that the veteran was properly notified of the March 1956, 1958, and 1959 rating decisions and the letters of notification in question were adequate. The March 1956 letters were sent to the veteran's father and to the contact person at the VA hospital. It is clear from the medical evidence then of record, which has been briefly described above, that the veteran was disoriented and incoherent throughout this period. The RO acted correctly in sending a letter to the veteran's father, and the veteran does not appear to disagree with that action. The veteran further appears to challenge the contents of the letters, contending that the letters did not serve to adequately inform him of the denials of service connection for psychosis and the bases therefor. However, this argument amounts to a disagreement with the manner in which the Board weighed the evidence in its January 1998 decision. The veteran in essence contends that the letters were deficient in not furnishing him with more information. The Board could reasonably conclude, however, based on the existence and contents of the letters, that the veteran or his fiduciary had been duly informed of the denials of service connection and that such notification was adequate. Accordingly, the Board's conclusion that the 1956, 1958 and 1959 decisions were final was not clearly and unmistakably erroneous. The veteran's contentions amount to a disagreement as to how the Board, in the January 1998 Board decision, weighed or evaluated the facts. As noted above, under 38 C.F.R. § 1403(d)(3), a disagreement as to how the facts were weighed or evaluated does not provide a basis to find CUE. This claim of CUE is really no more than a dispute with how the evidence was weighed and evaluated and that can not provide a basis to support a finding of CUE as a matter of law. The veteran has not established that the Board was "undebatably incorrect" in its interpretation that the veteran was properly notified of the rating decisions in question. See Russell, 3 Vet. App. 310, 319 (1992) (facts of appellant's case showed that the RO had been "undebatably incorrect" that the "service records do not indicate defective hearing while on active duty"). Accordingly, the Board concludes that the veteran has not set forth specific allegations of error, of either fact or law, which would warrant a finding of CUE in the January 1998 Board decision. The Board concludes that the January 1998 Board decisions did not contain CUE, and the veteran's motion is denied. ORDER The motion for revision of the Board's January 1998 decision on the grounds of clear and unmistakable error is denied. Barry F. Bohan Member, Board of Veterans' Appeals The Board notes in passing that the veteran did not raise any specific arguments pertaining to adequacy of the notification letters in January 1998. See, in particular, the August 1997 VA Form 646 and the October 1997 Informal hearing presentation. Although the Board stops short of finding that he is estopped from presenting such argument in the context of Board CUE, in light of his silence the Board does not find that a detailed discussion of the adequacy of those letters was needed in the January 1998 Board decision.