Citation Nr: 0007733 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-08 546A ) DATE ) ) THE ISSUE Whether a May 29, 1998, decision of the Board of Veterans' Appeals (Board) denying entitlement to a temporary total convalescent rating under 38 C.F.R. § 4.30 based on hemorrhoid surgery performed in September 1995 should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from March 1971 to June 1972. This matter comes before the Board from a June 1998 motion from the veteran for revision or reversal on the grounds of clear and unmistakable error (CUE) of a May 1998 decision of the Board which denied the above-noted claim. FINDINGS OF FACT 1. In a May 1998 decision, the Board denied entitlement to a temporary total convalescent rating under 38 C.F.R. § 4.30 based on hemorrhoid surgery performed in September 1995. 2. In a June 1998 motion for revision or reversal of the Board's May 1998 decision, the veteran does not allege that any of the laws or regulations extant at the time were incorrectly applied by the Board. 3. In the June 1998 motion, the veteran alleges CUE as to how the facts were weighed or evaluated at the time of the May 1998 Board decision. CONCLUSION OF LAW The allegations advanced in the veteran's June 1998 motion for revision or reversal of the Board's May 1998 decision based on CUE either do not meet the pleading requirements to "set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision" or, at best, express no more than "[a] disagreement with how the facts were weighed or evaluated" by the May 1998 Board. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(d)(3), 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background In a May 29, 1998, decision, the Board denied entitlement to a temporary total convalescent rating under 38 C.F.R. § 4.30 based on hemorrhoid surgery performed in September 1995. In the veteran's argument to the Board on appeal, he stated that he followed his discharge instructions and that the doctor should have written on his report that the veteran required convalescence. He argued, in essence, that the fact that he was given discharge instructions as to taking sitz baths, eating high fiber foods, and staying off his feet, amounted to the equivalent of telling him he required convalescence. Both the discharge summary and the educational notes with discharge instructions were of record before the Board in May 1998. In June 1998, the veteran filed a motion for reconsideration of the May 1998 Board decision. He stated that he was hospitalized for hemorrhoid surgery (a service-connected condition) from September 18 to September 20, 1995, and that he was entitled to a temporary total rating under 38 C.F.R. § 4.30. He contended, in essence, that the discharge instructions he was given, i.e., to drink plenty of liquids, eat high fiber foods, stay off his feet, and take sitz baths, were the equivalent of ordering a 30-day convalescence, notwithstanding that the discharge summary said he might return to prehospital activities. He argued that the doctor should have written "convalescence" on his report, but he did not. He said he had to return for follow-up visits because of pain and bleeding. The veteran's motion for reconsideration was denied by the Board in July 1998 and he was notified that his statement was being construed as a request for revision of the May 1998 Board decision on the grounds of CUE. In April 1999, the Board notified the veteran that, despite the July 1998 letter, it would not consider his motion for reconsideration as a motion for CUE unless he informed VA within 60 days that he wanted it to be construed as a motion for CUE. The veteran was provided a copy of the final CUE regulations. He thereafter replied in April 1999 that he wished the Board to continue with his CUE motion. In August 1999, the Board forwarded a copy of the veteran's CUE motion to his representative, and provided an opportunity to file a response. After review of the claims folder, in October 1999 the veteran's representative responded that the Board erred by failing to grant entitlement to a temporary total disability rating for a period of convalescence under 38 C.F.R. § 4.30 based on a hemorrhoidectomy performed in September 1995. The representative recounted the factual history concerning the surgery. He further stated that the veteran continued to experience symptoms of rectal bleeding and pain after the surgery and other symptoms of such severity so as to warrant a one-month period of convalescence. II. Legal analysis The Board has original jurisdiction to determine whether clear and unmistakable error exists in a prior final Board decision. Such review may be initiated by the Board on its own motion or by a party to the decision. 38 C.F.R. § 20.1400. A party disagreeing with the Board's denial of a motion for revision based on clear and unmistakable error in a prior Board decision can appeal that determination to the U.S. Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals). 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1409(d). A claim of clear and unmistakable error is not a claim or application for Department of Veterans Affairs (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 well-groundedness and the 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 for reopening claims on the grounds of new and material evidence under 38 U.S.C.A. § 5108 apply to clear and unmistakable error claims. 38 C.F.R. § 20.1411(a) and (b). A clear and unmistakable error motion is not an appeal and therefore, with certain exceptions, it is not subject to the provisions of 38 C.F.R. Parts 19 and 20, which pertain to the processing and disposition of appeals. 38 C.F.R. § 20.1400. Additionally, Board decisions which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have been subsequently decided by a court of competent jurisdiction are not subject to review on the basis of clear and unmistakable error in Board decisions. 38 C.F.R. § 20.1400(b). VA regulations define what constitutes clear and unmistakable error and what does not, and they provide in pertinent part: § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (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 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 the 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. § 20.1404 Rule 1404. Filing and pleading requirements; withdrawal. . . . (b) Specific allegations required. The motion 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 manifestly 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 which fail to comply with the requirements set forth in this paragraph shall be denied. 38 C.F.R. §§ 20.1403, 20.1404 (1999). In his motion, the veteran asserted in essence that the medical evidence of record supported his claim, but was overlooked. The veteran essentially disagrees with how the Board weighed or evaluated the facts. Such contentions are insufficient to satisfy the criteria for a motion for revision of the prior Board decision on the basis of clear and unmistakable error. See 38 C.F.R. §§ 20.1403(d)(3) (1999). That the veteran's motion merely takes issue with how the facts, as known at the time of the May 1998 Board decision, were evaluated is highlighted by the fact that his motion for reconsideration/CUE asserts essentially the exact argument that he made prior to the May 1998 Board decision. He argues that his discharge patient education instructions should be considered to show a need for convalescence, even though the doctor said he could return to prehospitalization activities in the discharge summary. He argues that the Board weighed and evaluated the evidence incorrectly. He argues that the Board should have interpreted the evidence differently. The veteran does not allege that the correct facts, as known at the time, were not before the Board. His patient education instructions and discharge summary were before the Board in May 1998. He simply does not agree with the way the evidence was weighed and evaluated. The veteran does not argue or allege that any statutory or regulatory provision extant at the time of the May 1998 decision was incorrectly applied by the Board. 38 C.F.R. § 20.1403(a) (1999). Because the allegations advanced in the veteran's June 1998 motion either do not meet the pleading requirements to set forth clearly and specifically the alleged errors of law in the Board decision and because, at best, the allegations in the motion express no more than a disagreement with how the facts were weighed or evaluated, the June 1998 motion for revision or reversal of the Board's May 1998 decision based on CUE must be denied. 38 C.F.R. §§ 20.1403(d)(3), 20.1404(b) (1999). ORDER The June 1998 motion for revision or reversal on the basis of clear and unmistakable error in a May 1998 decision of the Board denying entitlement to a temporary total convalescent rating under 38 C.F.R. § 4.30 based on hemorrhoid surgery performed in September 1995 is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals