Citation Nr: 0000704 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-20 711 ) DATE ) ) THE ISSUE Whether a July 1998 decision by the Board of Veterans' Appeals (Board) that dismissed the issue of timeliness of an appeal of a November 1969 decision by a Department of Veteran Affairs (VA) Regional Office (RO) involved clear and unmistakable error (CUE). (The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to dependency and indemnity compensation (DIC) as the unremarried widow of the veteran is addressed in a separate decision that has been assigned a separate docket number.) REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION In a September 1998 statement (VA Form 21-4138), the appellant requested reconsideration of a July 7, 1998, Board decision. In November 1998, the appellant representative filed a request for motion for reconsideration. In December 1998, the Board denied the motion for reconsideration, and informed the appellant that it was also construing the motion as a request for revision of a prior Board decision on the grounds of CUE, which would be reviewed once final regulations with respect to carrying out the provisions of Pub. L. No. 105-111 had become effective. In March 1999, the appellant and her representative were notified of the final CUE regulations and given 60 days to notify the Board if she wished to proceed with her claim. In April 1999, the appellant stated that she wished to proceed with her claim. In August 1999, the appellant and her representative were given notice of the rules regarding challenges to Board decisions on the grounds of CUE, and were given 30 days to respond. In a statement dated later in August 1999, the appellant's representative requested the claims file to review, in order to provide additional arguments on behalf of the appellant with regard to the CUE claim. Based on the communications since the motion for reconsideration was denied, the Board finds that the appellant has challenged the Board's July 1998 decision on the grounds of CUE. The new statutory and regulatory provisions permit a claimant to demand review by the Board to determine whether CUE exists in an appellate decision previously issued by the Board, with a right of review by the United States Court of Appeals for Veterans Claims (Court) of such determinations. 38 U.S.C.A. §§ 5109A and 7111; 38 C.F.R. §§ 20.1400, 20.1403; VAOPGCPREC 01-98 (O.G.C. Prec. 01-98). FINDINGS OF FACT 1. In a decision dated July 7, 1998, the Board dismissed an issue of whether a notice of disagreement had been timely filed with respect to a November 1969 rating decision that denied the appellant's claim for DIC as the unremarried widow of the veteran. The Board found that because the evidence revealed that the RO had not issued a decision on the timeliness issue, that the appellant had not filed a notice of disagreement with regard to the timeliness issue, and that the appellant had not perfected an appeal of the issue of timeliness of an appeal of the November 1969 rating decision. 2. The facts as they were known at the time of the Board decision of July 7, 1998, were correct and it has not been shown otherwise. 3. The statutory and regulatory provisions extant at the time of the July 7, 1998, Board decision were correctly applied and it has not been shown otherwise. CONCLUSION OF LAW The decision of July 7, 1998, wherein the Board dismissed an issue of timeliness of appeal of a November 1969 rating decision that denied the appellant's claim for DIC as the unremarried widow of the veteran, did not contain CUE. 38 U.S.C.A. §§ 5109A, 7104, 7111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.200, 20.201, 20.1400, 20.1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board recognizes that a CUE motion is not a claim or application for VA benefits. Therefore, duties associated with such claims or applications are inapplicable, including notification under 38 U.S.C.A. § 5103(a) of the existence of evidence which might complete a claimant's application for benefits; the requirements of a well-grounded claim; and VA's duty to assist in the development of such claims. 38 C.F.R. § 20.1411 (c) and (d). In addition, neither the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) nor the provisions of reopening claims on the grounds of new and material evidence under 38 U.S.C.A. § 5108 apply to CUE motions. 38 C.F.R. § 20.1411 (a) and (b). A CUE motion is not an appeal and, with certain exceptions, is not subject to the provisions of 38 C.F.R. Parts 19 and 20 which relate to the processing and disposition of appeals. 38 C.F.R. § 20.1402. The Board has original jurisdiction to determine whether CUE exists in a prior final Board decision. Such review may be initiated by the Board, on its own motion, or by a party to that decision. 38 C.F.R. § 20.1400. A party that disagrees with the Board's denial of a motion for revision based on CUE in a prior Board decision can appeal that determination to the Court. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1409(d). The appellant asserts that the Board committed CUE in its July 7, 1998, decision by dismissing the issue of whether an appeal had been timely filed with respect to a November 1969 rating decision that denied her claim for DIC as the unremarried widow of the veteran. 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. 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. 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 VA 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. 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 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. Examples of situations that are not clear and unmistakable error include (1) a changed diagnosis - a new medical diagnosis that ''corrects'' an earlier diagnosis considered in a Board decision; (2) the Secretary's failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. CUE 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. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1403. The Court stated in Fugo v. Brown, 6 Vet. App. 40, 43 (1993), that "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Importantly, 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. The correct facts of record as they were known at the time of the Board's July 1998 decision revealed that the appellant filed a claim in March 1996 requesting DIC as the unremarried widow of the veteran, which was followed by a September 1996 statement in which she requested an explanation as to why she was not receiving DIC. In November 1996, the RO informed the appellant that her November 1969 claim for DIC as the unremarried widow of the veteran had been denied because her marriage to the veteran had not met the requirements for either a deemed valid marriage or a deemed valid common-law marriage, and that her current claim was denied because the evidence of record had not changed since the November 1969 denial. In two November 1996 statements, the appellant expressed her disagreement with the RO's November 1996 denial of her claim for DIC benefits. The RO subsequently sent the appellant a letter in January 1997 which again set forth the reasons for its November 1969 denial of a claim for DIC, and which reiterated its denial of her current claim for DIC on the basis that she had not submitted new and material evidence with which to reopen the previously denied, and now final, November 1969 claim for those benefits. In April 1997, the RO issued a statement of the case, which listed the issue as timeliness of appeal of the November 1969 rating decision. Thereafter, the appellant requested that her appeal be forwarded to the Board (VA Form 9, received by VA on June 2, 1997). The Board must again emphasize that 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. 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. An appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been issued, a timely filed substantive appeal. 38 C.F.R. § 20.200. A notice of disagreement is a written communication from the claimant expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201. Special wording is not required but the notice of disagreement must be in terms that can be reasonably construed as disagreement with a determination and a desire for appellate review. Id. While it is unfortunate that the RO, in its April 1997 statement of the case, introduced, and only discussed, the issue of whether a timely appeal had been filed with regard to the November 1969 rating decision, the facts remain that the RO never issued a decision as to that issue, and the appellant never filed a notice of disagreement as to that issue. Therefore, she could not have perfected an appeal of the issue of timelines of appeal of the November 1969 rating decision. The record clearly shows that, in her November 1996 statements, she was appealing the RO's denial of entitlement to DIC due to the absence of new and material evidence with which to reopen the previously denied, and final, November 1969 claim. Because the RO had never issued a decision denying timeliness of an appeal of the November 1969 rating decision, and the appellant never filed a notice of disagreement with regard to that issue, thereby precluding perfection of an appeal of the issue, the Board's decision to dismiss the issue of timeliness of appeal of the November 1969 rating decision, on the basis that it did not have jurisdiction of the issue, was entirely appropriate. Clearly, the statutory and regulatory provisions extant at the time of the July 7, 1998, Board decision were correctly applied, and it has not otherwise been shown or contended. The facts as they were known at the time of that decision were correct, and it has not been shown otherwise. All pertinent documentary evidence was considered by the Board. No relevant document was overlooked. Clearly, the correct facts as stated in this case and known to the Board in July 1998, lack evidence of an error such 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. Additionally, the Board points out that any argument based upon disagreement as to how the relevant facts were weighed or evaluated, that is, a "misinterpretation of facts," does not give rise the level of CUE as that term has come to be defined. Overall, the Board finds that the criteria for CUE existing in the Board decision of July 7, 1998, have not been met. ORDER There was no CUE in the July 7, 1998, decision wherein the Board dismissed, for lack of jurisdiction, a claim as to whether the appellant had timely perfected an appeal of a November 1969 rating decision that had denied entitlement to DIC as the unremarried widow of the veteran, and, accordingly, that decision should not be revised or reversed. M. SIEGEL Acting Member, Board of Veterans' Appeals