Citation Nr: 0000035	
Decision Date: 01/03/00    Archive Date: 12/28/01

DOCKET NO.  97-32 575A	)	DATE
	)
	)


THE ISSUE

Whether a January 22, 1990, decision of the Board of 
Veterans' Appeals (Board) that did not address the issue of 
entitlement to service connection for side effects of Indocin 
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

William L. Pine



INTRODUCTION

The veteran had active service from September 1979 to October 
1980.

The veteran raised the issue of clear and unmistakable error 
(CUE) in a January 1990 decision of the Board of Veterans' 
Appeals (Board) in a statement received by the Department of 
Veterans Affairs (VA) St. Petersburg, Florida, Regional 
Office (RO) in March 1990.  In March 1998, the Board stayed 
action on the matter pending promulgation of regulations to 
implement a new law authorizing motions for revision of 
prior, final Board decisions on the grounds of clear and 
unmistakable error.  Those final regulations have been 
issued.  The stay is lifted, and this decision responds to 
the veteran's March 1990 claim of CUE in the Board's January 
1990 decision.

FINDINGS OF FACT

1.  On January 22, 1990, the Board issued a decision that did 
not consider or determine entitlement to service connection 
for side effects of the prescribed use of Indocin in service.

2.  As of January 22, 1990, the veteran had not filed a claim 
for service connection for side effects of the prescribed use 
of Indocin in service.

3.  On or about March 2, 1990, the St. Petersburg, Florida, 
RO received veteran's first communication to VA expressing 
his belief that he suffers current disability as a result of 
the prescribed use of Indocin in service; he listed the 
specific side effects in a statement received on April 10, 
1990.

4.  The statement of March 2, 1990, alleged the Board 
committed obvious error of fact or law in failing, in its 
January 22, 1990, decision, to consider "the effect of the 
use of the drug Indocin."

5.  In his motion, the veteran has not pointed to any error 
of fact or any error in the application of the law with 
respect to an issue addressed in the January 22, 1990, Board 
decision.


CONCLUSION OF LAW

The allegations made in the veteran's March 2, 1990, motion 
for revision or reversal of the Board's January 22, 1990, 
decision due to clear and unmistakable error do not meet the 
pleading requirements for a valid claim of CUE.  38 U.S.C.A. 
§ 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(c), 20.1404(b) 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Background

On January 22, 1990, the Board issued an appellate decision 
on the following issues: "1.  Entitlement to service 
connection for a neurological disability," and 
"2.  Entitlement to an increased (compensable) rating for 
the service-connected disability involving the area of the 
left fourth costochondral junction."  The word "Indocin" 
does not appear in the decision.

The records before the Board on January 22, 1990, including 
the veteran's statements in support of claims and October 
1989 testimony at a hearing before the Board on appeal, 
contained no statement of a claim for compensation for 
disabilities resulting from use of Indocin.  They contained 
no expression of the veteran's belief that he currently had 
disabilities resulting from the prescribed use of Indocin in 
service.

On March 2, 1990, the St. Petersburg, Florida, RO received 
several documents from the veteran or his representative, 
including a letter stating disagreement with the Board's 
decision.  The veteran stated, "The BVA did not address the 
issue in their decision.  The main issue was the purpose and 
effect of the use of the drug Indocin."  He submitted a copy 
of a page listing the side effects of Indocin from The 
American Medical Association Guide to Prescription and Over 
the Counter Drugs.  In a statement received April 10, 1990, 
the veteran listed the specific side effects of Indocin he 
alleged he suffered.

In a November 1999 statement, the veteran discussed the part 
of the new regulation that identifies the record subject to 
review in matters of Board CUE and providing for constructive 
inclusion in the record of certain materials not actually 
before the Board in Board decisions on or after July 21, 
1992.  He further asserted the merits of his underlying claim 
for benefits.  He argued, in essence, that reports of recent 
medical examinations should be considered to determine if 
there was CUE in the Board's January 1990 decision, because 
the reports constituted evidence that should have been of 
record in January 1990.

II.  Analysis

Statute provides for a claimant for VA benefits to move for 
revision of an adverse final appellate decision of the Board 
of Veterans' Appeals on the grounds of "clear and 
unmistakable error."  38 U.S.C.A. § 7111 (West Supp. 1999).  
Specific rules pertaining to revision of decisions on grounds 
of CUE are found in sections of title 38, Code of Federal 
Regulations, Part 20, Subpart O as follows:

§ 20.1400  Rule 1400.  Motions to revise 
Board decisions.

  (a) Review to determine whether clear 
and unmistakable error exists in a final 
Board decision may be initiated by the 
Board, on its own motion, or by a party 
to that decision (as the term ``party'' 
is defined in Rule 1401(b) (§ 20.1401(b) 
of this part) in accordance with Rule  
1404 (§ 20.1404 of this part).
  (b) All final Board decisions are 
subject to revision under this subpart 
except:
  (1) Those decisions which have been 
appealed to and decided by a court of 
competent jurisdiction; and
  (2) Decisions on issues which have 
subsequently been decided by a court of 
competent jurisdiction.

§ 20.1401  Rule 1401.  Definitions.

  (a) Issue.  Unless otherwise specified, 
the term ``issue'' in this subpart means 
a matter upon which the Board made a 
final decision (other than a decision 
under this subpart) .  As used in the 
preceding sentence, a ``final decision'' 
is one which was appealable under Chapter 
72 of title 38, United States Code, or 
which would have been so appealable if 
such provision had been in effect at the 
time of the decision.
  (b) Party.  As used in this subpart, 
the term ``party'' means any party to the 
proceeding before the Board that resulted 
in the final Board decision which is the 
subject of a motion under this subpart, 
but does not include officials authorized 
to file administrative appeals pursuant 
to § 19.51 of this title.

* * *

§ 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 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.

* * *

§ 20.1404  Rule 1404.  Filing and 
pleading requirements; withdrawal.

  (a) General.  A motion for revision of 
a decision based on clear and 
unmistakable error must be in writing, 
and must be signed by the moving party or 
that party's representative.  The motion 
must include the name of the veteran; the 
name of the moving party if other than 
the veteran; the applicable Department of 
Veterans Affairs file number; and the 
date of the Board of Veterans' Appeals 
decision to which the motion relates.  If 
the applicable decision involved more 
than one issue on appeal, the motion must 
identify the specific issue, or issues, 
to which the motion pertains.  Motions 
which fail to comply with the 
requirements set forth in this paragraph 
shall be dismissed without prejudice to 
refiling under this subpart.
  (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.


Initially, the veteran's March 1990 motion for revision of 
the Board's decision based on CUE satisfies the several 
procedural requirements of such motions.  Although it did not 
state the date of the Board decision alleged to contain CUE, 
the error is harmless given that the writing was years before 
the promulgation of the specific requirement, and the 
identity of the Board decision referenced in the writing is 
not in question.  38 C.F.R. § 20.1404(a).  The motion 
identified an issue alleged to have involved CUE with 
sufficient specificity to permit the Board to now review the 
merits of the motion.  Id.

Next, the veteran argued in November 1999 that the Board 
should now consider medical records that were not of record 
before the Board on January 22, 1990, because the evidence in 
the records should have been before the Board in January 
1990.  The regulation is explicit about the evidence reviewed 
to determine if a past Board decision contained CUE; it is 
evidence of record on January 22, 1990.  38 C.F.R. 
§ 20.1403(b)(1) (1999).  The Board decision he moves to 
revise due to CUE was made prior to July 21, 1992, and it 
therefore does not fall under the exception pertaining to 
consideration of material constructively but not actually of 
record.  38 C.F.R. §  20.1403(b)(2) (1999).  Thus, his 
argument is without merit, and the Board does not now 
consider the substance of the proffered medical records.

Turning to the merits of the motion, the veteran has not met 
the requirements for a motion for revision of a Board 
decision based on CUE.  As the veteran complains, the January 
1990 Board decision did not address or decide the issue of 
entitlement to compensation for side effects of the 
prescribed use of Indocin in service.  As a matter of logic, 
the very idea of a clear and unmistakable error is 
inconsistent with a failure to make a decision.  A failure to 
make a decision cannot be a clear and unmistakable error in 
the making of a decision.  Simply, something that does not 
exist cannot be defective.

As an additional, related matter of logic, the veteran had 
nowhere prior to the January 1990 Board decision ever claimed 
entitlement to compensation for the side effects of Indocin.  
The Board cannot imagine how a failure to consider a 
nonexistent claim could be CUE.

The statute and regulations are consistent with this 
reasoning.  Section 7111 pertains to a "decision" of the 
Board, 38 U.S.C.A. § 7111(a) (West Supp. 1999) (emphasis 
added), and the veteran's allegation is specifically the lack 
of a decision.  The pertinent definition contemplates that 
motions for revision for CUE will allege CUE pertaining to an 
"issue, . . . a matter on which the Board made a final 
decision."  Nothing in the January 22, 1990, Board decision 
addressed the side effects of Indocin.  Therefore, nothing in 
that decision could have been appealed as a final decision 
under Chapter 72 of title 38, United States Code, i.e., to 
the United States Court of Appeals for Veterans Claims (to 
which Chapter 72 pertains).  Thus, the veteran's motion 
addresses a matter that is not an issue determined in a final 
decision of the Board.  The failure to address an issue is 
not susceptible to attack as a clear and unmistakable error, 
because, if an error at all, it is not of the sort 
contemplated by the statute or the defining regulation.  See 
38 C.F.R. § 20.1403 (1999).

Although the previous discussion is essentially dispositive 
of the veteran's motion, further comment on section 20.1403 
is warranted to be complete.  The regulation carefully 
describes what is and what is not a clear and unmistakable 
error.  Nothing in the veteran's March 2, 1990, and April 10, 
1990, statements, read together, suggest an error that, had 
it not been made, manifestly would have resulted in a 
different result in the January 1990 Board decision, i.e., an 
award of service connection for side effects of Indocin.  The 
veteran has cited no law or regulation that could have been 
considered that would have compelled that result, as 
regulation requires.  38 C.F.R. § 20.1404(b) (1999).  Even if 
he had cited a law or regulation showing that the Board 
violated that law or regulation by failing to decide a claim 
initially raised after the Board's decision, such a failure 
in no way indicates that the Board decision would have 
resulted in his winning his claim.  38 C.F.R. § 20.1403(a) 
(1999).

By any line of reasoning, the veteran has failed to set forth 
clearly and specifically the alleged clear and unmistakable 
error or errors of fact or law but for which the Board 
undebatably would have granted the claim he protests they did 
not decide.  Consequently, the motion must be denied.  
38 C.F.R. § 20.1404(b) (1999). 


ORDER

The motion for revision of the January 22, 1990, decision of 
the Board of Veterans' Appeals decision for clear and 
unmistakable error in failing to consider the issue of 
entitlement to service connection for side effects of Indocin 
is denied.



		
	J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals