Citation Nr: 0000409 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-34 075A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board of Veteran's Appeals' June 1996 decision which found no new and material evidence had been submitted to reopen a claim for service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from March to November 1945. He died in February 1984. The moving party is the veteran's widowed spouse. This case comes before the Board of Veteran's Appeals (Board) on motion by the moving party alleging CUE in a June 1996 Board decision. In June 1999, the moving party requested a list of representatives. In September 1999, the Board provided a list of representatives to her. The moving party was allowed 90 days to obtain representation. Since September 1999, no reply has been received from the moving party. Consequently, she is not represented in her appeal. FINDINGS OF FACT 1. The claim of entitlement to service connection for the cause of the veteran's death was denied by a June 1984 rating decision. The moving party did not file a timely appeal of this determination to the Board. 2. In June 1996, the Board determined that additional evidence submitted since the June 1984 rating decision was duplicative or did not raise a reasonable possibility of changing the outcome of this case. 3. The Board's decision of June 1996 was supported by evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. CONCLUSION OF LAW The Board's June 1996 decision did not contain CUE. 38 U.S.C.A. § 7111 (West Supp. 1998); and 38 C.F.R. §§ 20.1400 - 20.1411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background When the RO considered the claim in June 1984, it was determined that the cause of the veteran's death could not be etiologically linked to any disease or injury in service. At that time, the only evidence of record consisted of the service medical records and a copy of the veteran's death certificate. The service medical records were negative for any treatment of any disability during his military service. An examination report of November 1945 noted flat feet and crepitant rales in the right interscapular region. The RO determined that the lung disorder noted on the November 1945 examination preexisted service and there was no medical evidence of any treatment for that disorder which would indicate aggravation. In addition, although the death certificate noted chronic pulmonary disease, pneumothorax, emphysema, and pulmonary tuberculosis were the cause of death, there was no medical evidence to relate these disorders to the veteran's service, nor was there evidence that the pulmonary tuberculosis was manifest to a degree of 10 percent or more within the three year presumptive period. Consequently, the RO concluded that service connection for the cause of the veteran's death should be denied. The moving party filed a notice of disagreement. After a statement of the case was issued, the moving party did not file a substantive appeal. As a result, the June 1984 decision became final. In June 1996, the moving party argued that her claim should be reopened because the additional evidence submitted, which consisted of a copy of the veteran's physical examination conducted in November 1945, copies of X-ray reports from February 1977 and March 1977, a copy of a hospitalization report from February 1977, and a transcript of an April 1994 hearing at the RO, should be considered new and material. In a June 1996 decision, the Board found that the additional evidence did not demonstrate that the cause of the veteran's death was related to an in-service injury or disease. Consequently, it was found no new and material evidence has been presented to reopen the claim. Reconsideration of this determination was denied in March 1999. In April 1999, she was provided a copy of the pertinent regulations regarding this issue. No additional records or arguments were provided by the moving party. Analysis Rule 1403, which is found at 38 C.F.R. § 20.1403 (1999), 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 further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the U.S. Court of Appeals for Veterans Claims (Court). More specifically, it was observed that Congress intended that the Department of Veterans Affairs (VA) adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE, such as Fugo v. Brown, 6 Vet. App. 40 (1993). In this case, the moving party has failed totally to provide any basis for her conclusion that the Board's June 1996 decision contains 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 for 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 wishes to 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 CUE 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 CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). As 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, the United States Court of Appeals for the Federal Circuit decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), decided after the Board's June 1996 decision, would not support the moving party's CUE claim. In addition, there are no specific contentions of error of fact or law in the decision in question. The contention amounts to a disagreement with the outcome of this decision. The moving party is simply reiterating her previous contentions. Such arguments can not form the basis of a CUE claim. She has not set forth any basis for a finding of error or any indication why the result of this decision would have been different but for an alleged error. After 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 of law, in the June 1996 decision by the Board. There are no specific contentions of error of fact or law in the decision in question. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the June 1996 Board decision on the grounds of CUE is denied. Richard B. Frank Member, Board of Veterans' Appeals