Citation Nr: 0006552 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-08 515A ) DATE ) ) THE ISSUE Whether an April 1998 decision of the Board of Veterans' Appeals which denied ratings in excess of those assigned for residuals of a gastrectomy and for a ventral hernia should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. Sampson, Associate 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. FINDINGS OF FACT 1. In an April 1998 decision, the Board denied evaluations greater than those assigned for residuals of a gastrectomy and for a ventral hernia. 2. 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 the Board's claimed error of fact or law and why the result in the decision would have been manifestly different but for the alleged error. CONCLUSION OF LAW The motion is insufficient to support revision of the Board's April 1998 decision on the basis of clear and unmistakable error. 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 CONCLUSION 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) (emphasis added). 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). 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. In pleadings prepared by the moving party in June, September and October 1998 and in August 1999, it was asserted that the 1998 Board committed clear and unmistakable error because it failed to assign a percentage sufficient to compensate the moving party for his physical problems. He also submitted copies of medical records in support of his claim. The Board concludes that the moving party has failed to set forth persuasive reasons why the decision of April 1998 was clearly and unmistakably erroneous to the extent that, had the alleged errors not been committed, the outcome in the case would have been manifestly different. 38 C.F.R. § 20.1404(b). 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 clear that a different result would have ensued but for the error, the error complained of cannot be clear and unmistakable. The 1998 Board considered the medical evidence before it at that time and found that it did not support a higher evaluation for the moving party's residuals of gastrectomy and ventral hernia. The Board therefore finds his allegations represent, at best, expressions of disagreement with how the Board weighed or evaluated the evidence in its decision of July 1998, which as stated above, is not the "very specific and rare" kind of error that constitutes clear and unmistakable error. 38 C.F.R. § 20.1403(a) & (d)(3) (1999). Without any specific allegation of error in fact or law in the Board decision, the motion is insufficient to support revision of the Board's July 1998 decision on the basis of clear and unmistakable error and the motion must be denied. The Board also notes arguments by the moving party's representative in August 1999 that it would be premature to adjudicate the claim because of a pending court challenge to the Chairman's rule making authority in the promulgation of regulations regarding clear and unmistakable error. This challenge is described as currently before the United States Court of Appeals for the Federal Circuit. The Board can find no basis in this argument for delay in the review of the moving party's motion for clear and unmistakable error where such delay is based on anticipation of changes in existing caselaw or regulations which might not occur. ORDER The motion alleging clear and unmistakable error in the Board's July 1998 decision is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals