Citation Nr: 0001463 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-06 838A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the Board of Veterans' Appeals (Board) decision rendered May 15, 1998, which denied service connection for residuals of a head injury and attempts to reopen claims of entitlement to service connection for a heart disorder and a right knee disorder. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran served on active duty from October 1959 to January 1962. This matter comes before the Board as the result of a motion by the veteran alleging clear and unmistakable error in a decision by the Board issued on May 15, 1998. FINDINGS OF FACT 1. The May 1998 Board decision found that the moving party had not submitted evidence of a well-grounded claim for a head injury nor had he submitted new and material evidence to reopen his claims for service connection for a heart disorder or a right knee disorder. 2. The moving party has alleged that the claims should have been granted as the evidence shows that he received head injuries in service which affect him today and that current heart and right knee disabilities are associated with an assault he sustained during active service; that the Board failed to fulfill the duty to assist the veteran in the development of the claims; and that the Board applied the wrong legal standard in its determination not to reopen the heart and right knee claims. CONCLUSION OF LAW The moving party's allegations of clear and unmistakable error in the May 1998 Board decision in failing to find the head injury claim well-grounded and to reopen the claims for entitlement to service connection for a heart and a right knee disorder fail to meet the threshold pleading requirements for revision of the Board decision on grounds of clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has argued that there was clear and unmistakable error (CUE) in the Board decision rendered May 15, 1998, which concluded that evidence of well-grounded claim for residuals of a head injury had not been submitted and that new and material evidence had not been submitted to reopen claims for service connection for a heart and a right knee disability. A review of the procedural history is relevant. Subsequent to the issuance of a Board decision dated in May 1998, the veteran submitted a written statement listing a number of reasons why the Board decision was inaccurate. Essentially, he urged that he had given the VA all evidence necessary to prove his claims and that the VA nevertheless erroneously denied these claims. In June 1998 the veteran's representative submitted a Motion for Reconsideration. By letter dated October 30, 1998, the Acting Chairman of the Board denied the motion, but noted that the veteran's May 1998 letter would also be treated as a motion for CUE in the May 1998 Board decision. In March 1999, the Board wrote to the veteran, advising him that final CUE regulations had been published in the Federal Register on January 13, 1999, and that copies of the regulation were enclosed. The Board instructed the veteran that it would wait sixty days before adjudication of the CUE claim, and that if the veteran wanted to proceed, he should review the regulations and provide the Board with the appropriate information and arguments, which the veteran's representative provided to the Board in October 1999 in a Motion for Revision. In the October 1999 motion, the veteran's representative gave a recitation of the factual background of the veteran's alleged disabilities. The representative then explained that the veteran maintained that the Board erred by not granting service connection for residuals of head injury. Further, the representative reported the veteran's contention that CUE was committed in the other two claims since certain evidence submitted to the Board in connection with the 1998 decision was in fact new and material. 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 (1999). Pursuant to 38 C.F.R. § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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 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 that fail to comply with the requirements set forth in this paragraph shall be denied. The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 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). The Board points out that a review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. In this case, the moving party has not demonstrated that the Board's May 1998 decision contains CUE. As to the first issue, the veteran argues initially that the record contained ample evidence of a head injury in service, and that both lay and medical evidence of continued treatment was improperly weighed by the Board. He maintains that he was actually assaulted in service by a group of men and that he was not in a fight as reported in some of the records. He has listed the names of several individuals who attested to their knowledge of the veteran's post-service manifestations of head injury. While statements from these individuals were considered by the Board in the May 1998 decision, the Board noted that the veteran was service-connected for hearing loss and tinnitus based on reported head injury in service, but that there was otherwise no competent, i.e., medical evidence of current head injury residuals. Such an allegation does not constitute a valid claim of CUE, since a disagreement as to how the facts were weighed or evaluated cannot constitute CUE. 38 C.F.R. § 20.1403(d). Inasmuch as the veteran urges that the duty to assist was not fulfilled, the Board notes that the records reported by the veteran were sought and obtained by VA to the extent possible. Regardless, the Secretary's failure to fulfill the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403(d). Moreover, the motion as it pertains to the other two claims is equally without merit. Evidence of record at the time of the May 1998 decision relating to the heart disorder claim included the record as it was at the time of the 1981 rating decision, consisting of service medical records showing no heart problems, and lay statements indicating that the veteran had been denied reenlistment shortly after discharge in 1962 secondary to heart trouble. New evidence added at the time of the May 1998 decision established that the veteran currently had a heart condition, including a history of possible myocardial infarction in 1988. Lay statements indicated the aforementioned history. A reported treatment source could not be contacted despite attempts at development. Thus, the Board concluded that the evidence provided was new but not probative, and, as such, that new and material evidence had not been presented to reopen the claim. Similarly, the evidence before the Board regarding the right knee included the record as it was at the time of the 1990 rating decision, showing an acute episode of knee swelling in 1960 followed by an eventual abatement of symptoms by the time of service separation. Examination in 1990 yielded complaints without objective findings. Evidence submitted in an attempt to reopen the claim in 1998 included medical evidence of degenerative arthritis in 1994 along with additional lay statements. The veteran has alleged that the Board improperly concluded that evidence submitted in conjunction with the 1998 decision was not new and material. In this regard, the veteran has disagreed with the evaluation of the evidence without specificity. Such an allegation does not constitute a valid claim of CUE. 38 C.F.R. § 20.1403(d). With regard to all the three issues, general allegations such as those made above do not constitute a valid claim of CUE. As stated by the United States Court of Appeals for Veterans Claims, (hereinafter 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) (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's "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). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The failure to conclude that the veteran has residuals of a head injury related to service is not an "undebatable" error. Further, the failure to reopen the claims for a heart or right knee disorder was not an "undebatable" error. The May 1998 Board decision was, therefore, consistent with and supported by the law then applicable for determining whether the veteran had met his burden to present a well-grounded claim and to reopen the claims for service connection for a heart disorder and a right knee disorder. 38 U.S.C.A. §§ 5108, 7104 (West 1991). Therefore, the Board finds that the Board's decision was a reasonable exercise of adjudicatory judgment and did not involve CUE. The undersigned would also note that the arguments raised by the veteran overwhelmingly relate to the interpretation and evaluation of the evidence. In this respect, the veteran has raised a generic allegation of error concerning the May 1998 Board decision, but not necessarily the discrete issue of CUE. The veteran has alleged that the May 1998 decision was the product of error essentially because the decision failed to consider all the evidence, which he claimed demonstrated that he has had problems with the alleged conditions since service. This argument represents a clear-cut example of disagreement as to how the evidence was interpreted and evaluated, and, as such, cannot constitute a basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(3); see also Luallen, supra. Finally, the Board notes that the veteran's representative argues that there was CUE in the May 1998 Board decision in that the Board applied a legal standard for "new and material" evidence which exceeded that required by the controlling regulation, 38 C.F.R. § 3.356. In support of this argument, the veteran's representative cites Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The standard applied by the Board in its May 1998 decision was that dictated by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This standard required that there must be a reasonable possibility that the new evidence would change the outcome of the prior final decision in order to be considered "material" evidence. Subsequent to the May 1998 Board decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the Court's interpretation of the term "new and material" overstepped the actual definition set forth in the regulation. Hodge v. West, 155 F.3d 1356, 1361, 1364 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a) (1998). Therefore, the Federal Circuit overruled the Colvin test for the purposes of reopening claims for the award of veterans' benefits and stated that whether evidence is material must be evaluated "under the proper, regulatory standard." Hodge, 155 F.3d at 1362, 1364. By its regulatory definition, 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) (1999). Thus, that aspect of the allegation of the veteran's representative also is not a basis for a finding of CUE. After careful 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 law, in the May 15, 1998, decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the May 15, 1998, Board decision on the grounds of CUE is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals