Citation Nr: 0003816 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-19 869 ) DATE ) ) THE ISSUE Whether an April 1998 decision of the Board of Veterans' Appeals denying an increased rating above 10 percent for residuals of a dog bite to the right hand, to include carpal tunnel syndrome, should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (the Board) on a motion by the moving party alleging clear and unmistakable error in a Board decision issued in April 1998. The Board is construing this motion as being limited to the Board's denial of an increased rating above 10 percent for the dog bite residuals as the other claim decided in the April 1998 decision, service connection for bilateral hearing loss, was granted by the Board at that time, and therefore, no further justiciable controversy remains as to the hearing loss claim arising out of the April 1998 Board decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. In an April 1998 final decision, the Board denied an increased rating above 10 percent for residuals of a dog bite to the right hand, to include carpal tunnel syndrome. 2. In pleadings filed with the motion alleging clear and unmistakable error in the Board's April 1998 decision, the moving party submitted new evidence that was not before the Board in April 1998. It has not been alleged or shown otherwise that this evidence should have been before the Board in April 1998. 3. Aside from the new evidence, the pleadings submitted by the moving party alleging clear and unmistakable error in the April 1998 Board decision do not clearly and specifically set forth why the result in the decision would have been manifestly different but for alleged clear and unmistakable error. CONCLUSIONS OF LAW 1. The new evidence submitted by the moving party with his motion alleging clear and unmistakable error in the Board's April 1998 decision may not be considered in connection with this motion. 38 C.F.R. §§ 20.1403(b)(2), 20.1405(b) (1999). 2. The Board's April 1998 decision was not clearly and unmistakably erroneous in denying an increased rating above 10 percent for residuals of a dog bite to the right hand, to include carpal tunnel syndrome. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Board decision is subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a) (West Supp. 1999). Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on its own motion, or upon request of a claimant at any time after the decision is made. 38 U.S.C.A. § 7111(c) and (d). A request for revision is to be submitted directly to the Board and decided by the Board on the merits, 38 U.S.C.A. § 7111(e), and a claim filed with the Secretary requesting such reversal or revision is to be considered a request to the Board, 38 U.S.C.A. § 7111(f). Motions for review of Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to regulations published by VA in January 1999. 38 C.F.R. §§ 20.1400-1411 (1999). According to the regulations, clear and unmistakable error 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. 38 C.F.R. § 20.1403(a). Generally, clear and unmistakable error is present when 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 ignored or incorrectly applied. Id. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1). However, 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 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)(2). The Board's Rules of Practice further provide that while material included in the record on the basis of the aforementioned Rule (20.1403(b)(2)) is not considered new evidence, no new evidence will be considered in connection with the disposition of the motion. 38 C.F.R. § 20.1405(b) (emphasis added). The regulations cited above further provide that 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. 38 C.F.R. § 20.1403(c) (emphasis added). Examples of situations that are not clear and unmistakable include: (1) Changed diagnosis. A new 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 under 38 U.S.C.A. § 5107(a); and, (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, 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. 38 C.F.R. § 20.1403(e). In addition to the above, a motion for clear and unmistakable error in a Board decision must satisfy specific pleading requirements, and if it does not, the motion must be denied. 38 C.F.R. § 20.1404(b). The motion must set forth clearly and specifically the alleged 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. Id. (emphasis added). Non-specific allegations of failure to follow regulations, failure to give due process, and other general, non-specific allegations of error are examples of allegations that will not meet the pleading requirements necessary to file a motion for clear and unmistakable error in a Board decision. Id. It should be noted that the above-cited regulatory authority was published with the specific intent to codify the current requirements for a viable claim of clear and unmistakable error that the United States Court of Appeals for Veterans Claims (the Court) has defined for claims of clear and unmistakable error in rating decisions. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994). Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 (1997). On this point, it should be noted that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." The notice of proposed rulemaking, 63 Fed. Reg. 27534, 27536 (1998), reflects that the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of [clear and unmistakable error]." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). The Board may therefore rely on the well-established precedent of the Court on what exactly constitutes a valid claim of clear and unmistakable error, such as is set forth in Russell, Damrel, Fugo, all supra. In a decision dated April 1, 1998, the Board denied an increased rating above 10 percent for residuals of a dog bite to the right hand, to include carpal tunnel syndrome. In July 1998, the moving party filed a request for reconsideration of the Board's April 1998 decision. Submitted with the request was new evidence, specifically, a hospital report showing an admission to the Shelby Baptist Medical Center in June 1998 for an endoscopic carpal tunnel release on the right hand; statements from Brice Brackin, M.D., dated May 13, 1998 and July 20, 1998, which addressed the aforementioned June 1998 carpal tunnel surgery; the report of a November 3, 1994 nerve conduction velocity study that indicated a finding of bilateral carpal tunnel syndrome; a duplicative report of a March 1996 VA cranial nerves examination; the report of an audiogram conducted in July 1998 at a private facility; and, finally, a statement dated April 10, 1998 from an official of the Pullman Standard Company addressing the reasons why the moving party was refused employment in 1971 because of a failed hearing test. The request for reconsideration of the Board's April 1998 decision was denied by the Board's Acting Chairman in December 1998. The Acting Chairman found that the Board's decision contained findings of fact that had a plausible basis in the record, that the decision was consistent with the available evidence and applicable law/regulations, and that it contained clearly stated reasons and bases for the decision. Thereafter, in June 1999, the moving party filed a statement requesting further review of the Board's decision of April 1998 on the grounds of clear and unmistakable error. He did not submit any evidence or argument with this statement, but as the record reflects that he was advised by the Board in April 1999 that his request for reconsideration would also be considered a motion requesting revision of the Board's April 1, 1998 decision on the grounds of clear and unmistakable error under authority granted by Public Law 105-111, the Board will at this time proceeds to a disposition on this motion. The Board will rely on his July 1998 request for reconsideration of the Board's decision and evidence submitted therewith as no additional argument or evidence has been received. In addressing the matter of the inclusion of the new evidence submitted with the reconsideration request in July 1998, the Board must deny this part of the moving party's motion on procedural grounds. As detailed above, except under limited circumstances, which for the reasons enunciated here are not applicable to the facts in this case, the regulations governing motions challenging a prior Board decision on the grounds of clear and unmistakable error specifically prohibit consideration of new evidence in connection with such motions. 38 C.F.R. § 20.1403(b)(2) (Rule 1403(b)(2)). Although the Board's decision of April 1998 falls under the purview of Rule 1403(b)(2) based on date of issuance, the new evidence submitted with the July 1998 reconsideration request would not be considered "relevant documents" held constructively by VA, as it is not shown that the Board had direct or inferred knowledge of the existence of this new evidence when its decision was issued in April 1998. Cf. Bell v. Derwinski, 2 Vet. App. 611 (1992); Franzen v. Brown, 9 Vet. App. 235 (1996). This is so because most of this evidence post dates the Board's decision, and it is not shown that such evidence was available but not obtained when the decision was issued. Further, while it is acknowledged that the November 3, 1994 nerve conduction velocity report was not actually of record when the Board issued its April 1998 decision, the record reflects that the results of that study were reported in a document attached to an October 1994 VA miscellaneous neurological disorders examination, and that the Board discussed the findings from that study in its decision. Hence, it is not shown that the Board ignored relevant evidence that should have been made part of the appellate record when it decided the case on April 1, 1998. In light of the above, the Board concludes that its decision of April 1998 was not clearly and unmistakably erroneous on any other grounds. As stated by the Court and adopted in the regulations governing motions alleging clear and unmistakable error in prior Board decisions, for such error to exist, 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." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). On this point, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of clear and unmistakable. See Fugo, supra, 6 Vet. App. at 43, 44 ("[i]t must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error'" and, there is "presumption of validity to otherwise final decisions" and the "presumption is even stronger" when such cases are collaterally attacked on the basis of error). In this case, the Board finds that, apart from his submission of the evidence with his July 1998 reconsideration request, the moving party has failed to set forth any reasons why the Board decision of April 1998 was clearly and unmistakably erroneous, particularly, to the extent that had any alleged errors not been committed, the outcome in the case would have been manifestly different. Fugo, 6 Vet. App. at 44. Hence, there are no "clearly and specifically set forth" allegations from this motion addressing how the Board's decision of April 1998 contained any error that would compel the conclusion, to which reasonable minds could not differ, that the result in the decision would have been manifestly different but for alleged error. The caselaw of the Court and the regulations cited above are clear on the point that allegations of clear and unmistakable error must be supported by specific allegations of error in fact or law in the Board decision, and if it is not absolutely clear that a different result would have ensued but for the error, the error complained of cannot be clear and unmistakable. The motion filed by the moving party herein lacks these pleading requirements. Accordingly, the Board concludes that the moving party has failed to set forth clearly and specifically a legal or factual basis to support a reason why the result in April 1998 Board decision would have been manifestly different but for the alleged errors. 38 C.F.R. §§ 20.1403(a), 20.1404(b) (1999). ORDER The motion alleging clear and unmistakable error in the Board's April 1998 decision is denied. A. BRYANT Member, Board of Veterans' Appeals