Citation Nr: 0203173 Decision Date: 04/08/02 Archive Date: 04/18/02 DOCKET NO. 01-05 672 ) DATE ) ) THE ISSUE Whether the Board of Veterans' Appeals (Board) committed clear and unmistakable error (CUE) in a June 4, 2001 decision to assign an initial disability rating of 20 percent for impotence. REPRESENTATION Moving party represented by: William T. Guarnieri, Attorney ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran ("moving party") served on active duty from July 1969 to July 1972. This case comes before the Board on motion by the moving party alleging CUE in a June 4, 2001 Board decision, which granted the maximum schedular 20 percent initial rating for service-connected impotence. A motion for review received from the moving party's attorney in July 2001 alleges that the June 4, 2001 Board decision contained CUE. This letter from the moving party's attorney effectively entered a motion for revision or reversal on the basis of CUE in the June 2001 Board decision. See 38 C.F.R. § 20.1400(a) (2001). FINDING OF FACT The June 4, 2001 Board decision to assign an initial disability rating of 20 percent for impotence was adequately supported by the evidence then of record and was not undebatably erroneous. CONCLUSION OF LAW The June 4, 2001 Board decision to assign an initial disability rating of 20 percent for impotence is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West Supp. 2000); 38 C.F.R. §§ 20.1400-20.1411 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now requires the Department of Veterans Affairs (VA) to assist a claimant in developing all facts pertinent to a claim for VA benefits. However, the United States Court of Appeals for Veterans Claims (Court) has held that the duty to notify and duty to assist provisions of the Veterans Claims Assistance Act of 2000 do not apply to motions for CUE in previous Board decisions. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001). Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. The statute and implementing regulations provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. In the implementing regulation, CUE is defined as: a very specific and rare kind of error, of fact or 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. 38 C.F.R. § 20.1403(a). The evidence to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. For a Board decision issued on or after July 21, 1992, the record to be reviewed 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). To warrant revision of a Board decision on the grounds of CUE, 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). Examples of situations that are not CUE are: (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. 38 C.F.R. § 20.1403(d). 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). In other cases prior to promulgation of this regulation, the Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In a June 4, 2001 decision, the Board entered a finding of fact that the veteran had loss of organic erectile power necessitating surgical insertion of an implant and which resulted in penile deformity. The June 2001 Board decision entered the conclusion of law that the criteria for an initial rating of 20 percent had been met. In the reasons and bases portion of the decision, the Board reviewed the history which included male erectile disorder secondary to prostatitis, an improperly working prosthesis since 1990 which caused pain, a prosthesis replacement eight months after initial installation, that a cylinder blew out of this second prosthesis and rendered the veteran unable to perform for several years, and that the veteran had rods replaced in 1995. In its June 2001 decision, the Board found that the veteran had become impotent and had not had natural, organic erectile power since before July 1990. The Board also found in its decision that, although a January 2000 VA examination indicated that the deformity of the penis caused by the implant was perfectly normal for such an implant, the veteran nevertheless had deformity of the penis, which met the criteria for a schedular 20 percent rating under 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Board further found that Diagnostic Code 7522 did not provide for a schedular rating in excess of 20 percent, and that the Rating Schedule did not provide for a rating in excess of 20 percent for impotence under any other appropriate diagnostic code. Through his representative, the moving party contends that the June 4, 2001 Board decision contains CUE because the Board "failed to consider" evidence of a March 27, 1995 VA examination report and failed "to give the Veteran the benefit of the doubt in his favor." The moving party's attorney contends that this VA examination report "substantiates the testimony of the Veteran that his prosthesis had not operated properly and that he needed to see Dr. Porter." With regard to the alleged factual error - that the Board did not consider a March 27, 1995 VA examination report - the evidence demonstrates that a copy of this report was in fact of record at the time of the June 2001 Board decision. The Board was not specifically required to mention every item of evidence of record it reviewed in reaching its conclusion, even though its review of the "record" began at least from the most relevant period in 1990, through 2000. The Board did consider the essence of the veteran's personal hearing testimony and the evidence of record which demonstrated that he had an erectile disorder secondary to prostatitis, that a cylinder blew out of this second prosthesis and rendered him unable to perform for several years (including for the period 1995), and that he had rods replaced in 1995; in sum, the Board found that the veteran had become impotent and had not had natural, organic erectile power since before July 1990. This finding included the relevant period in 1995; the Board considered as credible the veteran's testimony of impotence from 1990 and deformity or defect (bulging on the right side of penile prosthesis with movement out of position) in 1995. The Board essentially accepted the veteran's personal hearing testimony regarding his impotence since 1990 and penile deformity, the very facts the March 1995 document is now alleged to have corroborated. Therefore, even an explicit reference to the March 1995 VA examination report by the June 2001 Board decision and explicit consideration by the Board of this report for the purpose of corroborating the veteran's personal hearing testimony would not have resulted in a different factual finding regarding the veteran's impotency or deformity. Moreover, even assuming, arguendo, that any factual error occurred, the evidence does not demonstrate that the result would have been manifestly different but for this alleged error. A schedular rating in excess of 20 percent under Diagnostic Code 7522 was not possible, as 20 percent was the maximum schedular rating provided for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. With regard to the contention that the Board's June 4, 2001 decision failed to give the veteran the benefit of the doubt, the June 2001 Board decision granted the maximum schedular benefit, a 20 percent schedular rating, determined that a higher rating under another diagnostic code was not possible, and determined that referral for an extraschedular rating was not warranted. Therefore, there was no remaining issue upon which the Board could have resolved reasonable doubt and the moving party has not specifically alleged any. The moving party does not challenge the Board's finding that a higher rating would not have been possible as well under any other diagnostic code or that the Board erred in its determination regarding an extraschedular rating. Based on the law in effect at the time, the Board now finds that the June 4, 2001 Board decision to assign an initial disability rating of 20 percent for impotence was adequately supported by the evidence then of record and was not undebatably erroneous. The June 2001 Board decision presented adequate reasons and bases for its decision, including adequate factual and legal bases. The evidence does not demonstrate that the accurate facts were not before the Board or that any statutory or regulatory provisions or precedent opinions of the VA General Counsel extant at the time of the June 2001 Board decision were incorrectly applied to the facts of the case. For these reasons, the Board finds that the evidence does not demonstrate that there was error which, had it not been made, would have manifestly changed the outcome of the Board's June 4, 2001 decision to assign an initial disability rating of 20 percent for impotence. That is, given the facts available at the time, and the prevailing law, there was no undebatable error by the Board in assigning an initial disability rating of 20 percent for impotence. For these reasons, the Board finds that the June 4, 2001 Board decision to assign an initial disability rating of 20 percent for impotence is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400-20.1411. ORDER The motion is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597B that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? In the section entitled "Appeal to the United States Court of Appeals for Veterans Claims," you are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," you no longer need to have filed a "notice of disagreement ... that led to the decision the Board has just reviewed for CUE ... on or after November 18, 1988" as a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.