Citation Nr: 0007169 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-01 922A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in a January 26, 1998, Board of Veterans' Appeals (Board) decision which denied entitlement to nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran, served on active duty from January 14, 1953, through February 17, 1953, and from March 19, 1954, through May 4, 1954. He died on November [redacted], 1993. The moving party is the veteran's widow. In December 1996, the RO denied the moving party's claim for nonservice-connected death pension. She appealed, and in a decision dated January 26, 1998, the Board denied her appeal. The moving party has filed a motion for revision of the January 26, 1998, Board decision on the basis of clear and unmistakable error. FINDING OF FACT The January 26, 1998, Board decision was adequately supported by the evidence then of record, and was not undebatably erroneous. CONCLUSION OF LAW The January 26, 1998, Board decision 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 On February 17, 1998, the moving party submitted correspondence which the Board construed as a motion for revision of the Board's January 1998 decision, which denied a claim for nonservice-connected death pension, based on clear and unmistakable error ("CUE"). In July 1998, the Board informed the moving party, by written correspondence, that her motion for reconsideration of the Board's January 1998 decision had been denied. The moving party was also advised that the Board would construe her motion for reconsideration on the basis of obvious error as a request for revision of the prior Board decision on the grounds of CUE under the provisions of 38 U.S.C.A. § 7111. The Board further informed the moving party that consideration of that matter would be deferred pending promulgation of final regulations setting forth the procedures necessary to carry out the provisions of 38 U.S.C.A. § 7111. In May 1999, the Board furnished the moving party with a copy of the newly promulgated regulations governing motions for revision of Board decisions on the basis of CUE and provided her with 60 days in which to submit a response if the moving party wished to have her prior correspondence construed as a Motion for revision based on CUE. The moving party reportedly responded affirmatively that same month. However, the Board noted that a copy of this response was not associated with the claims file, and in February 1998, the Board sent the moving party a letter requesting that she indicate whether it was her intent to have her prior correspondence considered as a motion for revision of the January 1998 Board decision based on CUE. In a letter received in February 2000, the moving party stated that she wished to have her prior correspondence construed as a Motion for revision based on CUE. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. 38 C.F.R. § 20.1403, 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). In reaching its January 1998 decision, the Board initially noted that under 38 U.S.C.A. § 1541(a), pension is payable to the surviving spouse of a veteran of a period of war, provided that the veteran met the service requirements of 38 U.S.C.A. § 1521(j) and provided that the veteran and his spouse were married prior to a specified date for a period of more than one year or for any period of time if a child was born of the marriage, or was born to them before the marriage (38 U.S.C.A. § 1541(f)). It was also noted that a veteran is deemed to have met the service requirements if he served in the active military, naval, or air service for 90 days or more during a period of war; or if, during a period of war, he was discharged or released from such service for a service-connected disability; or if he served for a period of 90 consecutive days or more and such period began or ended during a period of war; or if he served for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. Citing 38 U.S.C.A. § 1521(j). In reviewing the evidence, the Board found that the veteran had two periods of service during the Korean conflict and that he and the moving party met the marriage requirements for veterans of that conflict. The Board then determined that the evidence showed that the veteran served on active duty for a total of less than 90 days, and that there was no evidence from either period of service that he was discharged for service-connected disability. The Board therefore concluded that the basic eligibility criteria for nonservice- connected death pension benefits had not been met. Citing 38 U.S.C.A. §§ 101(11), 1501, 1521(j), 1541(a), (f); 38 C.F.R. §§ 3.2(e), 3.3, 3.17; Sabonis v. Brown, 6 Vet. App. 426 (1994). In this case, the facts before the Board at the time of the January 1998 decision included a copy of a certificate of discharge and a DD Form 214. A copy of the veteran's certificate of discharge shows that he enlisted on January 14, 1953, and that he was separated from service on February 17, 1953. The veteran's DD Form 214 indicates that he served from March 19, 1954, through May 4, 1954. Service medical records for the first period of service were not of record, and those for the second period of service show that the veteran was discharged for back disability which had preexisted service. Based on the foregoing, the Board determined that the evidence showed that the veteran was not discharged from either period of service due to a service- connected disability, and that he served on active duty for a total of less than 90 days, i.e., from January 14, 1953, through February 17, 1953, and from March 19, 1954, through May 4, 1954. The moving party argues that the veteran had active service from 1953 to 1954, such that the veteran had at least 90 days of service during wartime, and that she is therefore qualified for nonservice-connected death pension. Of particular note, she does not argue that the Board misread the veteran's service and/or service medical records which were used in the Board's decision. She does not point to any evidence of record which contradicts the Board's conclusion. The essence of her argument is that the service records themselves are simply inaccurate. She argues that the service records must be in error because the veteran could not have been discharged from a first period of service and then accepted for a second period of service with such a severe back disorder. However, the Board notes that the veteran was born in July 1936, such that he was 16 years old during his first period of service, and that he may simply have been discharged in 1953 because of his status as a minor. In any event, VA is bound by the findings of the service department with respect to the type or classification of the veteran's military service and discharge therefrom. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1990). To the extent that the moving party disagrees with the periods of the veteran's military service as reflected in his service records, the moving party must raise this concern with the Marine Corps. See, e.g., Laruan v. West, 11 Vet. App. 80, 82 (1998). Based on the foregoing, the Board does not find that CUE was involved in the Board's January 26, 1998, decision. As stated by the United States Court of Appeals for Veterans Claims (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 of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (emphasis added) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Board must 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 [clear and unmistakable error] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Accordingly, the Board's determination, that the moving party was not eligible for nonservice-connected death pension, is not an "undebatable" error. The January 26, 1998, Board decision was consistent with and supported by the law then applicable for determining whether the moving party was eligible for nonservice-connected death pension. 38 U.S.C.A. §§ 1521, 1541. Therefore, the Board finds that the denial of nonservice-connected death pension was a reasonable exercise of adjudicatory judgment and did not involve CUE. ORDER The motion for revision of the January 26, 1998, Board decision on the grounds of clear and unmistakable error is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals