Citation Nr: 0007897 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-12 205A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the June 30, 1998 Board decision which denied an increased rating for right eye exposure keratitis with dry eye syndrome. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The moving party served on active duty from January 1953 to October 1955. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the moving party for revision or reversal of a June 30, 1998 Board decision on the grounds of clear and unmistakable error (CUE). FINDINGS OF FACT 1. The June 1998 Board decision found that the preponderance of the evidence was against an increased rating for exposure keratitis with dry eye syndrome of the right eye. 2. The June 1998 Board decision was supported by the evidence then of record; it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied, and the decision was not undebatably erroneous. CONCLUSION OF LAW The June 30, 1998 Board decision, which denied an increased rating for exposure keratitis with dry eye syndrome of the right eye, does not contain 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 moving party has argued that there was clear and unmistakable error ("CUE") in the June 30, 1998 Board decision which concluded that the preponderance of the evidence was against an increased rating for exposure keratitis with dry eye syndrome of the right eye. The moving party's representative has submitted a written brief, dated in November 1999, in support of the moving party's motion. 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 pleading requirement. 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. A June 1996 RO decision granted service connection for exposure keratitis with dry eye syndrome of the right eye and assigned a 0 percent rating. In February 1997 the RO increased the rating for the right eye condition to 10 percent. The relevant evidence of record at the time of the June 1998 Board decision consisted of service medical records, private medical records, and VA visual examinations. In a February 1996 statement, a private optometrist indicated that the veteran's right eye problem was generally easily treated with artificial tears or other ophthalmic lubrication; corrected visual acuity was 20/20 in both eyes. In May 1996, a private physician stated that the veteran had mild lagophthalmos of the right lid with an inferior corneal defect. Examination of the posterior segment of the right eye was normal, and the physician commented that the veteran had mild exposure keratitis caused by his inability to fully close the right lid. A VA eye examination in January 1997 noted that the veteran's vision was correctable to 20/20 bilaterally. On examination of the corneas, findings were normal except for a little exposure keratitis of the left eye. Medications included artificial tears. In the November 1999 motion for revision, the moving party has asserted that CUE in the June 1998 Board decision consisted of the Board's failure to establish a 30 percent evaluation for the veteran's right eye disability. Further, the November 1999 motion also asserted that the June 1998 Board decision erred by failing to establish a separate evaluation for the scarring around the eye in addition to the visual loss suffered in the eye. The Board observes that keratitis was to be rated from 10 to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology, with a minimum rating during active pathology of 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6001 (1997). Additional 10 percent ratings could be assigned if the veteran had associated diminished corrected visual acuity or if there was associated visual field loss. 38 C.F.R. § 4.84a, Diagnostic Codes 6079 and 6080. In light of the available evidence at the time of the June 1998 Board decision, the Board finds that it was entirely reasonable to continue the 10 percent rating for the veteran's right eye disability. In this regard, the Board notes that both private and VA medical records supported the June 1998 Board decision's finding of fact that the veteran had only mild active exposure keratitis with corrected visual acuity of 20/20. The moving party has not specified what medical evidence of record could justify a rating of 30 percent for the right eye disability. The moving party's argument represents an example of a 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 generally Luallen v. Brown, 8 Vet. App. 92, 95 (1995) (a disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error). Accordingly, the Board is of the view that the Board's June 1998 decision denying an increased rating for the veteran's right eye disability was not founded on clear and unmistakable error, and that the rating decision represented a reasonable exercise of adjudicatory judgment. The moving party also contends that the June 1998 Board decision contained CUE by failing to establish a separate evaluation for the scarring around the eye; the veteran asserts that the case of Esteban v. Brown, 6 Vet. App. 259 (1994), supports this particular contention. In a July 1986 RO decision, the veteran was granted service connection for a facial injury with residual scars, and was assigned a noncompensable evaluation. The decision referenced scars on both the veteran's right eye and his cheek. An April 1987 Board decision found the facial scarring to be moderately disfiguring and awarded the veteran a 10 percent evaluation. In a February 1997 rating decision, the RO denied the veteran's request for an increased rating for his facial scar disability. The Board observes that the issue of an increased rating for the veteran's facial scars, to include the issue of whether the scars should be rated separately, was not before the Board in June 1998. The veteran's substantive appeal, received by the RO in March 1997, did indicate his disagreement with the 10 percent rating assigned for his facial scarring by a February 1997 RO decision but, as noted in the introduction to the Board's June 1998 decision, he subsequently submitted statements that were received by the RO in October and December 1997, wherein he clarified the issue, indicating that he was pursuing his appeal of a rating in excess of 10 percent for his right eye keratitis. Thus, no statement of the case was issued on a claim for a rating in excess of 10 percent for the facial scars. Accordingly, the Board did not have jurisdiction to decide that issue in June 1998, and the Board's June 1998 decision could not have contained CUE on that basis. After careful review of the evidence of record, the undersigned concludes that the moving party has not demonstrated that the Board's June 1998 decision contains CUE. While duly noting the moving party's arguments, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. 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 v. Principi, 3 Vet. App. 310, 313-14 (1992). Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the June 30, 1998 Board decision on the grounds of CUE is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals