Citation Nr: 0003814 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-03 473A ) DATE ) ) THE ISSUE Whether the Board of Veterans' Appeals (Board) committed clear and unmistakable error (CUE) in a February 2, 1995 decision to deny an appeal for increased ratings for service- connected anxiety disorder and duodenal ulcer. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from July 1944 to August 1945. This matter comes before the Board as the result of a decision by the Board issued on February 2, 1995. In a letter and representative's brief, received in March 1998, the veteran submitted a motion for reconsideration of the Board's February 1995 decision. In a letter dated in March 1999, the veteran was advised that, although his motion for reconsideration of the February 1995 Board decision had been denied, the claim could be reviewed under the provisions of Public Law 105-111, which permitted review of Board decisions on the basis of CUE, provided he specifically requested that his motion for reconsideration be considered a motion for CUE. An April 1999 letter from the veteran has been construed as a request for review of the Board decision on the basis of CUE. See 38 C.F.R. § 20.1404(e) (1999). FINDING OF FACT The February 2, 1995 Board decision was adequately supported by the evidence then of record, and was not undebatably erroneous. CONCLUSION OF LAW The February 2, 1995 Board decision, which denied an appeal for increased ratings for service-connected anxiety disorder and duodenal ulcer, is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 1991); 38 C.F.R. §§ 20.1400, 20.1403 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.§ 7111, the Board has, for the first time, been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under the new statute may be filed at any time after the underlying decision is made. Pursuant to a recently issued opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board's new authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. The statute and implementing regulation provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. In the implementing regulation, CUE is defined as: a very specific and rare 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. 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. 38 C.F.R. § 20.1403(a). The evidence to be reviewed 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 to be reviewed 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. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, 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. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE are: (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. 38 C.F.R. § 20.1403(d). 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 C.F.R. § 20.1403(e). In other cases prior to promulgation of this regulation, the Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute clear and unmistakable error. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In this case, the February 2, 1995 Board decision entered conclusions of law that the requirements for increased disability ratings for the veteran's service-connected anxiety disorder and duodenal ulcer had not been met. In the reasons and bases portion of the February 2, 1995 decision, the Board reviewed the evidence of record beginning with the service medical records, and including VA outpatient and hospital treatment records in June 1991, a June 1991 VA examination report, and the veteran's personal hearing testimony in January 1992. The Board also referred twice in its decision to the undisputed fact that the veteran was undergoing group therapy on a monthly basis for anxiety or nervousness. In the motion for reconsideration and through his representative, the veteran has presented his contentions regarding CUE in the February 1995 Board decision. The errors are alleged to be: 1) the Board relied on medical evidence dated in 1991 and the veteran's personal hearing testimony given in 1992 "as the most current evidence"; 2) the Board did not review all of the veteran's medical treatment records, including records pertaining to group therapy he was undergoing; and 3) the veteran should see a specialist. The veteran has not alleged that the Board's application of a statute or regulation was incorrect. As the only allegations pertain to the evidence which was, or should have been, before the Board, the veteran implicitly contends that the correct facts were not before the Board at the time of its February 1995 decision. There is no evidence that the Board's February 1995 decision in fact relied on medical evidence dated in 1991 and the veteran's January 1992 personal hearing testimony "as the most current evidence." While the Board did not specifically list VA treatment records reflecting continued treatment pertaining to service-connected disabilities in October and December 1991, the lack of specific referral in the decision to these medical treatment record entries does not demonstrate that the Board erroneously ignored such evidence. The veteran has not proffered any evidence showing that the Board did not examine and consider all of the medical treatment records which were in the claims file. The veteran's assertion also fails because "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc. 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Id. Other treatment records in the claims file dated after June 1991 reflect treatment for unrelated disorders. Treatment records in the claims file dated in January and April 1992 also pertain to unrelated disorders. Moreover, even assuming, arguendo, that the Board did not review relevant treatment records dated in 1991, the veteran has not even alleged that any purported failure of the Board to specifically review of all treatment records would have resulted in a higher rating. The law requires not only that an error be committed; the error must compel the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. It must be absolutely clear that a different result would have ensued. See Fugo, 6 Vet. App. at 43; Russell, 3 Vet. App. at 313. With regard to the Board's reliance on the veteran's personal hearing testimony given in 1992, the January 1992 personal hearing testimony was the only testimony presented by the veteran. Notwithstanding the veteran's assertion, the Board did not in its decision claim that the veteran's personal hearing testimony given in 1992 was "the most current evidence," but only some evidence of record for its consideration. In the veteran's increased rating claims before the Board in February 1995, the Board had a duty to consider the veteran's hearing testimony and to base its final decisions "on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation." 38 U.S.C.A. § 7104(a) (West 1991). With regard to the veteran's contention that the Board did not review all of the veteran's medical treatment records, including records pertaining to group therapy he was undergoing, the Board's February 1995 decision reflects that it specifically considered and accepted the fact that the veteran was attending monthly group therapy sessions. Therefore, the correct fact that the veteran was participating in therapy sessions, to which the veteran testified at the personal hearing, was before the Board. The veteran has not entered a contention that the correct facts were not before the Board, only that VA did not fulfill the duty to assist in obtaining the group therapy session records. The veteran has offered little more than a disagreement with the result in the Board's February 2, 1995 decision, his representative contending in a November 1999 brief that "the Board erred by failing to establish entitlement to an increased rating for his anxiety disorder and ulcers." However, a disagreement as to how the facts were weighed or evaluated cannot constitute CUE. 38 C.F.R. § 20.1403(d). With regard to this contention, as well as the veteran's contention that VA should provide him a specialist examination, such could not form the basis of CUE because the Secretary's failure to fulfill the duty to assist cannot form the basis of CUE. See 38 C.F.R. § 20.1400(d). The Court has specifically noted that a breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). For the reasons indicated, the Board finds that the evidence does not demonstrate that there was error which, had it not been made, would have manifestly changed the outcome of the Board's decision. See 38 C.F.R. § 20.1403(c). That is, given the facts available at the time, and the prevailing law, there was no undebatable error by the Board in denying an appeal for increased ratings for service-connected anxiety disorder and duodenal ulcer. In the absence of the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the error, there is simply no basis upon which to find CUE in the Board's February 2, 1995 decision. Therefore, the Board now finds that the February 2, 1995 Board decision, which denied an appeal for increased ratings for service-connected anxiety disorder and duodenal ulcer, was adequately supported by the evidence then of record, and was not undebatably erroneous. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403. ORDER The Board decision of February 2, 1995 not having involved CUE, the motion is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals