Citation Nr: 0004559	
Decision Date: 02/22/00    Archive Date: 02/28/00

DOCKET NO.  97-34 049A	)	DATE
	)
	)



THE ISSUES

Whether there was clear and unmistakable error (CUE) in an 
August 1997 decision of the Board of Veterans' Appeals 
(Board) denying service connection for an eye disorder, elbow 
disorder and paranoid schizophrenia as well as an earlier 
effective date for an award of service connection for chronic 
dorsolumbar strain.  



REPRESENTATION

Moving Party Represented by:  Veterans of Foreign Wars of the 
United States




ATTORNEY FOR THE BOARD

James L. March, Counsel




INTRODUCTION

This matter is before the Board as an original action on the 
motion of the veteran alleging CUE in an August 1997 Board 
decision which denied his claims of service connection for an 
eye disorder, elbow disorder and paranoid schizophrenia as 
well as his claim for an earlier effective date for an award 
of service connection for chronic dorsolumbar strain.  

The veteran requested reconsideration of the decision, but 
reconsideration was denied in February 1998.  In the letter 
advising him that his motion for reconsideration was denied, 
the Board notified the veteran that, in light of Public Law 
No. 105-111 and VAOPGCPREC 1-98, it was also construing the 
motion as a request for revision of the August 1997 decision 
on the grounds of clear and unmistakable error (CUE).  The 
veteran was notified that the Board was engaged in 
promulgating regulations to carry out the provisions of 
Public Law No. 105-111 and that consideration of his claim 
was deferred until the regulations were finalized.  

In a March 1999 letter, the Board informed the veteran that, 
despite what was said in the February 1998 letter, the 
veteran's motion for reconsideration would not be considered 
a CUE motion unless the veteran or his representative 
informed the Board otherwise within 60 days.  

The Board has construed the veteran's response as a motion 
for CUE.  



FINDINGS OF FACT

1.  In August 1997, the Board denied the veteran's claims of 
service connection for an eye disorder, elbow disorder and 
paranoid schizophrenia as well as his claim for an earlier 
effective date for an award of service connection for chronic 
dorsolumbar strain.  

2.  The veteran has not alleged any error in the August 1997 
Board decision in terms that explain why the result of that 
decision would have been manifestly different but for the 
alleged error.  

3.  The correct facts, as they were known at the time, were 
before the Board and the statutory or regulatory provisions 
extant at the time were correctly applied.  



CONCLUSION OF LAW

The veteran's motion fails to allege, with the requisite 
specificity, a claim of CUE in the August 1997 Board 
decision.  38 U.S.C.A. §§ 5107, 7105, 7111 (West 1991 & Supp. 
1999); 38 C.F.R. §§ 3.104, 3.105(a), 20.1404 (1999).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran alleges CUE in the Board decision of August 1997, 
in failing to grant service connection for an eye disorder, 
elbow disorder and paranoid schizophrenia as well as an 
earlier effective date for an award of service connection for 
chronic dorsolumbar strain.  Until recently, a claimant was 
precluded from collaterally attacking a prior final Board 
decision by alleging CUE in a rating decision that was 
subsumed in that decision.  Smith v. Brown, 35 F.3d 1516 
(Fed. Cir. 1994).  

However, effective on November 21, 1997, the provisions of 
Pub. L. No. 105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. 
§ 7111 (West Supp. 1999)) permit challenges to decisions of 
the Board on the grounds of CUE.  Final regulations amending 
the Rules of Practice before the Board were promulgated and 
became effective on February 12, 1999, providing for 
procedures to challenge prior Board decisions on the basis of 
clear and unmistakable error.  64 Fed. Reg. 2134-2141 (1999).  

It is apparent, however, that Congress, in creating § 7111, 
intended VA to follow the established case law defining CUE.  
64 Fed. Reg. 2134, 2137 (1999).  This case law is found 
primarily in the precedent opinions of the United States 
Court of Appeals for Veterans Claims (known as the United 
States Court of Veterans Appeals prior to March 1, 1999) 
(hereinafter the "Court").  CUE is defined in Rule 1403(a) 
of the Rules of Practice (codified at 38 C.F.R. § 20.1403(a)) 
as "the kind of error, of fact or 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."  
See Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  

The review for CUE in a prior Board decision must be based on 
the record and the law as it existed when that decision was 
made.  64 Fed. Reg. 2134, 2139 (1999) (codified at 38 C.F.R. 
§ 20.1403(b)); see Russell v. Principi, 3 Vet. App. 310, 314 
(1992).  

In Russell, the Court propounded a three-pronged test for 
determining when there is CUE present in a prior decision.  
(1) either the correct facts, as they were known at the 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 of 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.  Russell v. Principi, 3 Vet. 
App. at 313-14.  

In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined 
and elaborated on the test set forth in Russell.  In Fugo, 
the Court stated:

CUE 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. . . .  If a claimant-
appellant wishes to reasonably raise CUE 
there must be some degree of specificity 
as to what the alleged error is and, 
unless it is the kind of error . . . 
that, if true, would be CUE on its face, 
persuasive reasons must be given as to 
why the result would have been 
manifestly different but for the alleged 
error.  It must be remembered that there 
is a presumption of validity to 
otherwise final decisions, and that 
where such decisions are collaterally 
attacked, and a CUE claim is undoubtedly 
a collateral attack, the presumption is 
even stronger.  

Fugo v. Brown, 6 Vet. App. at 43-44 (emphases in original).  
Thus, as a threshold matter, a claimant must plead CUE with 
sufficient particularity.  Only if this threshold requirement 
is met does the Board have any obligation to address the 
merits of the CUE claim.  See Phillips v. Brown, 10 Vet. 
App. 25 (1997) (distinguishing denial of CUE due to pleading 
deficiency and denial of CUE on merits); Luallen v. Brown, 
8 Vet. App. 92 (1995).  

The Court also held in Fugo that allegations that previous 
adjudications had improperly weighed and evaluated the 
evidence can never rise to the stringent definition of clear 
and unmistakable error.  Fugo v. Brown, 6 Vet. App. at 44.  
Similarly, broad brush allegations of "failure to follow the 
regulations" or "failure to give due process," or any 
other general, nonspecific claim of error cannot constitute a 
valid claim of clear and unmistakable error.  Id.  

As noted hereinabove, in August 1997 decision, the Board 
denied the veteran's claim of service connection for an eye 
disorder, elbow disorder and paranoid schizophrenia as well 
as his claim for an earlier effective date for an award of 
service connection for chronic dorsolumbar strain.  The 
veteran requested reconsideration of the decision, but 
reconsideration was denied in February 1998.  

In the letter advising him that his motion for 
reconsideration was denied, the Board notified the veteran 
that, in light of Public Law No. 105-111 and VAOPGCPREC 1-98, 
it was also construing the motion as a request for revision 
of the August 1997 decision on the grounds of clear and 
unmistakable error (CUE).  The veteran was notified that the 
Board was engaged in promulgating regulations to carry out 
the provisions of Public Law No. 105-111 and that 
consideration of his claim was deferred until the regulations 
were finalized.  

In a March 1999 letter, the Board informed the veteran that, 
despite what was said in the February 1998 letter, the 
veteran's motion for reconsideration would not be considered 
a CUE motion unless the veteran or his representative 
informed the Board otherwise within 60 days.  

The veteran responded in a statement received by the Board in 
April 1999.  The veteran stated: "I wish to have my request 
for reconsideration looked at on the grounds of clear and 
unmistakable error."  He asked the Board to forward the 
claims folder to his representative for review and argument.  

In a September 1999 statement, the veteran's representative 
pointed out that the veteran had alleged that the Board's 
August 1997 decision was clearly and unmistakably erroneous.  
The representative noted that the veteran did not respond to 
the Board's request for information regarding the CUE claim.  

Although the veteran's statements have been construed to be a 
CUE motion, he has offered no particular errors made by the 
Board.  To the extent that the veteran may be contending that 
the Board did not give enough weight to his allegations 
regarding stressors, such allegations can never rise to the 
stringent definition of clear and unmistakable error.  Fugo 
v. Brown, 6 Vet. App. at 44.  

The veteran has made no allegations to the effect that the 
correct facts, as they were known at the time, were not 
before the Board or that the statutory or regulatory 
provisions extant at the time were incorrectly applied.  See 
Russell, 3 Vet. App. at 313.  Absent such an allegation, the 
veteran's "motion" has framed the issue of CUE with 
insufficient specificity.  

Because the veteran's motion fails to allege CUE with the 
requisite specificity, there is no requirement that the Board 
address the merits of the issue.  64 Fed. Reg. at 2139 (1999) 
(codified at 38 C.F.R. §  20.1404); see Fugo v. Brown, 6 Vet. 
App. 40, 45 (1993).  Accordingly, the motion must be denied 
due to the absence of legal merit.  64 Fed. Reg. at 2139 
(1999) (codified at 38 C.F.R. §  20.1404(b)); see Rivers v. 
Gober, 10 Vet. App. 469, 472-73 (1997); Luallen v. Brown, 
8 Vet. App. 92, 96 (1995).  



ORDER

The veteran's motion to revise or reverse the August 1997 
decision of the Board, which denied the veteran's claims of 
service connection for an eye disorder, elbow disorder and 
paranoid schizophrenia as well as his claim for an earlier 
effective date for an award of service connection for chronic 
dorsolumbar strain, is insufficiently specific; therefore, 
his motion is denied.  



		
	STEPHEN L. WILKINS
Member, Board of Veterans' Appeals