Citation Nr: 0007174	
Decision Date: 03/16/00    Archive Date: 03/23/00

DOCKET NO.  98-08 518A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error in the 
February 23, 1998, Board decision, which denied a claim of 
entitlement to service connection for asbestosis and chronic 
obstructive pulmonary disease, claimed as residuals of 
asbestos exposure. 


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

S. L. Smith, Counsel


INTRODUCTION

The veteran, the moving party herein, had active service from 
August 1948 to February 1950, and from September 1950 to 
January 1957.

This matter comes before the Board from a June 1998 motion 
from the moving party for revision or reversal on the grounds 
of clear and unmistakable error (CUE) of a February 23, 1998 
Board decision that denied service connection for asbestosis 
and chronic obstructive pulmonary disease.


FINDINGS OF FACT

1.  In a February 23, 1998, decision the Board denied 
entitlement to service connection for asbestosis and chronic 
obstructive pulmonary disease, finding that the preponderance 
of the evidence was against the claim.

2.  The moving party has alleged that service connection 
should have been granted as the evidence supported the claim; 
and specifically, that the evidence did show that the 
veteran's asbestosis and chronic obstructive pulmonary 
disease were caused by his exposure to asbestos in service.  


CONCLUSION OF LAW

The moving party's allegation of clear and unmistakable 
error in the February 23, 1998, Board decision in failing to 
grant a claim for entitlement to service connection for 
asbestosis and chronic obstructive pulmonary disease 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 February 23, 1998, the Board issued a decision that 
denied the veteran's (moving party's) claim of entitlement 
to service connection for asbestosis and chronic obstructive 
pulmonary disease.  In June 1998, the moving party filed a 
motion for reconsideration of the February 1998 Board 
decision which was subsequently denied in September 1998.  
However, the moving party was also informed at that time 
that his correspondence would also be considered as a 
request for revision of the February 1998 Board decision on 
the grounds of CUE.  In March 1999, the Board notified the 
moving party 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 
moving party in April 1999, confirming his intent to have 
his earlier correspondence considered as a CUE motion.  
Thereafter, the Board forwarded a copy of the moving party'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 brief, dated November 
1999, in support of the moving party's motion for revision 
of the Board's decision of February 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 February 1998 decision contains CUE.  That 
determination found that there was no objective evidence 
which indicated that the veteran was exposed to asbestos 
during his active military service, and that there was no 
medical evidence which indicated that the veteran's current 
pulmonary disorders, to include chronic obstructive 
pulmonary disease and asbestosis, were caused by inservice 
asbestos exposure.  Thus, the Board held that the 
preponderance of the evidence was against the claim for 
service connection for residuals of asbestos exposure, to 
include asbestosis and chronic obstructive pulmonary 
disease; and therefore, the claim was denied.

In his June 1998 motion and supplemental argument provided 
by his representative, the moving party essentially argued 
that the Board erred in that the evidence of record did 
establish that the veteran's asbestosis and chronic 
obstructive pulmonary disease were due to his exposure to 
asbestos in service.  In additional argument submitted by 
the representative in November 1999, it is argued that 
"[I]n our opinion, the Board neglected the fact, that the 
physician stated a history of asbestos exposure ..."  
(Emphasis added).  In essence, the representative argued 
that the Board misinterpreted a 1986 medical report, in 
light of the additional evidence of record.  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 moving party has raised a generic 
allegation of error concerning the February 1998 Board 
decision, but not necessarily the discrete issue of CUE.  The 
moving party and his representative have alleged that the 
February 23 1998 decision was the product of error 
essentially because the Board failed to conclude that the 
evidence demonstrated a causal relationship between the 
veteran's diagnosed chronic obstructive pulmonary disease and 
asbestosis and his prior active duty.  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.

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 
February 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 February 23, 1998, Board 
decision on the grounds of CUE is denied.


		
	M. G. MAZZUCCHELLI
Acting Member, Board of Veterans' Appeals