Citation Nr: 0004475 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-32 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether there was clear and unmistakable error in a March 1996 Board of Veterans' Appeals decision, which denied a claim for entitlement to an effective date prior to July 31, 1990, for a grant of entitlement to service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation. REPRESENTATION Moving Party Represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from December 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 1996 motion from the veteran for revision or reversal on the grounds of clear and unmistakable error (CUE) of a March 1996 Board decision that denied entitlement to an effective date prior to July 31, 1990, for an award of service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation. FINDINGS OF FACT 1. In a March 1996 decision, the Board denied entitlement to an effective date prior to July 31, 1990, for a grant of entitlement to service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation. 2. The moving party has alleged that he should be service- connected for systemic lupus erythematosus back to service separation, as he contends that he had the disease since that time; the moving party also has alleged that he was misdiagnosed in 1977, and that at a minimum he should be assigned a total rating for systemic lupus erythematosus since that time. CONCLUSION OF LAW The moving party's allegation of clear and unmistakable error in the March 29, 1996, Board decision in failing to grant a claim for entitlement to an effective date prior to July 31, 1990, for a grant of entitlement to service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation fails 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, 1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION On March 29, 1996, the Board issued a decision that denied a claim for entitlement to an effective date prior to July 31, 1990, for a grant of entitlement to service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation. In June 1996, the moving party filed a motion for reconsideration of the March 1996 Board decision, which was subsequently denied in July 1996. In March 1997, the moving party filed a claim for entitlement to an earlier effective date for service connection for systemic lupus erythematosus; the moving party alleged an "obvious (or clear and unmistakable) error." Consequently, in an April 1997 rating decision, the RO adjudicated the moving party's claim as to whether there was CUE in the rating decision dated August 17, 1993, which assigned an effective dated for an award of service connection for systemic lupus erythematosus. The RO denied the claim and the moving party perfected a timely appeal, which was certified to the Board in October 1997. Upon receipt of this appeal at the BVA, it was noted that the August 1993 rating decision had been subsumed in the March 1996 decision. Thus, the proper issue before the Board was not whether there was CUE in the August 1993 rating decision, but, rather, whether there was CUE in the March 1996 BVA decision. Thus, by letter dated in April 1999, the BVA notified the moving party that in November 1997, Congress gave the BVA the authority to review its prior decisions on the grounds of CUE. Additionally, the BVA noted that in January 1999, final CUE regulations had been published in the Federal Register governing claims for CUE in Board decisions. The moving party was furnished with a copy of the new regulations, and given 60 days to respond. The moving party was also informed that if he did nothing, the Board would proceed with adjudication of his request. It does not appear that the moving party responded to the April 1999 BVA letter, and in an August 1999 letter the BVA informed the moving party that they intended to proceed with his appeal. Additionally, a separate BVA letter, dated in August 1999, was sent to the moving party's representative. In September 1999, the moving party's representative responded that they had no further comments. Thus, the Board will proceed with adjudication of this appeal. 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). According 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. The parameters as to what constitutes CUE, and what does not, are set forth in 38 C.F.R. § 20.1403, 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 Board finds that the moving party has not demonstrated that the Board's March 1996 decision contains CUE. The March 1996 Board decision noted that in three prior BVA decisions, dated in July 1985, December 1987, and February 1990, service connection was denied for systemic lupus erythematosus. The Board also noted that on July 31, 1990, the RO received the moving party's claim to reopen a claim for service connection for systemic lupus erythematosus. Further, in an August 1993 rating decision, the RO determined that the evidence submitted by the moving party was new and material to reopen his previously denied claim, and the RO granted service connection for systemic lupus erythematosus, with a 100 percent evaluation assigned from July 31, 1990, which was the date of receipt of the claim to reopen. In support of the foregoing decision, the Board cited 38 U.S.C.A. § 5110, which provides that the effective date of an award based on a claim reopened after final adjudication shall not be earlier than the date of receipt of the application therefor. Thus, the Board held that there was no legal authority to grant an effective date prior to July 31, 1990, the date of the moving party's reopened claim, for service connection for systemic lupus erythematosus, with assignment of a 100 percent evaluation, and therefore, the appeal was denied. In the moving party's statements of record, including the June 1996 motion for reconsideration, the March 1997 claim for CUE, hearing testimony from hearings held at the RO in April 1997 and June 1997, and a September 1997 VA Form 9, the moving party essentially argued that he should be assigned an effective date for systemic lupus back to service separation. The moving party indicated that he has had symptoms of lupus since active military service, and he also claimed that he was misdiagnosed in 1977, when in fact he had systemic lupus erythematosus in 1977. In short, the moving party essentially argues that he has had systemic lupus erythematosus at least as far back as 1977, and even during military service. Thus, he contends that the Board erred in not assigning an earlier effective date for entitlement to service connection for systemic lupus erythematosus. The Board finds that such an allegation does not constitute a valid claim of CUE. As stated by the United States Court of Appeals for Veterans Claims (Court), the following is required 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 emphasizes 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). 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). In this regard, the moving party has raised a generic allegation of error concerning the March 1996 Board decision, but not necessarily the discrete issue of CUE. The moving party has alleged that the March 1996 Board decision was the product of error essentially because he was misdiagnosed in 1977. This argument represents a clear-cut example of disagreement with the medical evidence, and is not a proper basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(3); see also Luallen, supra. Thus, after careful review of the evidence of record, including the moving party's allegations, it must be concluded that the moving party has not set forth specific allegations of error either of fact or law, in the March 29, 1996 BVA decision. Accordingly, in the absence of any additional allegations, the motion is denied. ORDER The motion for revision of the March 29, 1996, Board decision on the grounds of CUE is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals