Citation Nr: 0001984 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 97-34 019A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the August 22, 1997, Board decision, which denied an attempt to reopen a claim of entitlement to service connection for a bilateral eye disability. REPRESENTATION Moving Party Represented by: N. Drew Pierce, Attorney at Law ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The appellant active service from March 1954, to July 1954. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the appellant as to clear and unmistakable error in an August 22, 1997, Board decision. The Board will remand for the issuance of a statement of the case the issue of entitlement to service connection for a bilateral eye disability. See Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. The August 1997 Board decision found that the appellant had not submitted new and material evidence to reopen his claim for service connection for a bilateral eye disability. 2. The appellant has alleged that the claim should have been reopened as new and material evidence was submitted in support of the claim; and specifically, that the evidence showed that his current bilateral eye disability is associated with injury to the eyes incurred during active service; that additional evidence submitted subsequent to the Board's decision should have been considered; and that the original decision of the RO and all subsequent rulings were based on a "patently illogical" interpretation of the factual evidence. CONCLUSION OF LAW The appellant's allegation of clear and unmistakable error in the August 22, 1997, Board decision in failing to reopen a claim for entitlement to service connection for a bilateral eye disability 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 August 22, 1997, the Board issued a decision that denied the appellant's attempt to reopen his claim of entitlement to service connection for a bilateral eye disability. In December 1998, the appellant filed a motion for reconsideration of the August 1997 Board decision which was subsequently denied in April 1998. However, the appellant was also informed at that time that his correspondence would also be considered as a request for revision of the August 1997 Board decision on the grounds of CUE. In March 1999, the Board notified the appellant 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 appellant's attorney in May 1999, electing to proceed with the CUE motion. It is noted that the appellant's attorney also requested "additional time to prepare a new CUE motion based on the new regulations". Thereafter, the Board notified the appellant's attorney, by letter dated August 16, 1999, that he had 30 days from the date of the letter to file a relevant response. No further response was received from the appellant's attorney. 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 August 1997 decision contains CUE. That determination found that the evidence submitted since the Board's April 1991 decision was not new and material, and the veteran's claim for service connection for a bilateral eye disability was not reopened and remained denied. The moving party argues initially that the evidence of record at the time of the August 1997 decision established that he sustained injury to his eyes in service and that his current eye disability is associated with that in-service injury. Such an allegation does 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 appellant, through his attorney, has raised a generic allegation of error concerning the August 1997 Board decision, but not necessarily the discrete issue of CUE. The appellant has alleged that the August 1997 decision was the product of error essentially because the decision failed to conclude that the evidence submitted since April 1991, specifically the veteran's testimony and a written lay statement from a gunsmith, demonstrated a relationship between the veteran's current eye disability and his prior active service. 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 argument concerning the additional evidence, specifically, the December 1998 affidavit of Dr. D. Marx, which was submitted subsequent to the Board's August 1997 decision; the Board notes that such evidence was not in existence at the time of the decision and thus, can not be the basis of a valid CUE claim. See 38 C.F.R. § 1403(b)(1) (1999). 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 August 22, 1997, decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the August 22, 1997, Board decision on the grounds of CUE is denied. REMAND It is noted that the RO in a rating action dated June 1998, reopened and then denied the veteran's claim of entitlement to service connection for a bilateral eye disability. By written correspondence dated July 9, 1998, the veteran's attorney submitted a notice of disagreement (NOD), which initiated an appeal. However, it does not appear from the record that the RO has issued a statement of the case (SOC) to date. In Manlincon v. West, 12 Vet. App. 238 (1999), the U.S. Court of Appeals for Veterans Claims (Court) indicated that in a case in which a veteran expressed disagreement in writing with an RO decision and the RO failed to issue a statement of case, the Board should remand the issue to the RO, not referred it there, for issuance of an SOC. Accordingly, the case is REMANDED for the following action. The veteran should be issued an SOC on the issue of entitlement to service connection for a bilateral eye disability. The veteran should be advised of the necessity of filing a timely submit substantive appeal to complete his appeal. The purpose of this REMAND is to ensure compliance with the U.S. Court of Appeals for Veterans Claims' decision in Manlincon v. West, 12 Vet. App. 238, 240 (1999). Only if the veteran completes his appeal by filing a timely substantive appeal should this case be returned to the Board. See 38 U.S.C.A. § 7104(a) (West 1991). CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals