Citation Nr: 0331675 Decision Date: 11/14/03 Archive Date: 11/25/03 DOCKET NO. 00-02 237A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in an April 1979 Board decision which held that RO decisions which failed to grant a 100 percent rating for schizophrenic reaction for the periods from November 1952 to February 1958, from August 1958 to March 1961, from February 1968 to December 1968, and from February 1969 to February 1971, did not involve CUE. REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Tiedeman INTRODUCTION The veteran, the moving party in this case, served on active duty from January 1951 to August 1952. This case arises from a motion filed with the Board, under 38 U.S.C.A. § 7111, alleging CUE in a Board decision dated April 3, 1979. FINDINGS OF FACT 1. In a decision dated April 3, 1979, the Board held that unappealed rating actions which failed to assign 100 percent rating for schizophrenic reaction for the periods from November 1952 to February 1958, from August 1958 to March 1961, from February 1968 to December 1968, and from February 1969 to February 1971 did not involve CUE. 2. The moving party has not set forth specific allegations of error of fact or law in the April 1979 Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. CONCLUSION OF LAW Because the requirements for a motion for revision of a Board decision based on CUE have not been met, the motion must be dismissed without prejudice to refiling. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA. As an initial matter, the Board notes that there was a significant change in the law in November 2000 when the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). This law eliminated the concept of a well- grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); Parker v. Principi, 15 Vet. App. 407 (2002). Therefore, the VCAA is not applicable is this case. Legal Criteria. Once a Board decision has become final, as had the 1989 Board decision being collaterally attacked here, it generally may not be reversed or amended in the absence of CUE. See 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400-20.1403 (2003); cf. 38 U.S.C.A. § 5109A (providing for revision of VARO decision on basis of CUE); 38 C.F.R. § 3.105(a) (2003) (same). 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. 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. Rule 1404, which is found at 38 C.F.R. § 20.1404, provides as follows: (a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. (b) Specific Allegations Required. The motion 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 manifestly 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 which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc), the Court stated that CUE "must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made"); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); cf. Bustos, 179 F.3d at 1381 (noting that 38 U.S.C. § 5109A "merely codified 38 C.F.R. § 3.105 and the [United States] Court of Appeals for Veterans Claims' long[-]standing interpretation of CUE"). In Russell, the Court held: "A determination that there was a '[CUE]' must be based on the record and the law that existed at the time of the prior . . . decision." Russell, 3 Vet. App. at 314; see also 38 C.F.R. § 20.1403(b). These CUE regulations represent a codification of the Court's caselaw in Smith (Rose) v. West, 11 Vet. App. 134, 137-38 (1998) (rejecting CUE claim as to 1969 RO decision based on its application of VA regulation invalidated by this Court in 1993 because RO in 1969 had applied "the law in effect at that time", id. at 137). See also Berger v. Brown, 10 Vet. App. 166, 170 (1997). "In order for there to be a valid claim of [CUE], . . . the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Russell, 3 Vet. App. at 313; see also 38 C.F.R. § 20.1403(a); Damrel, supra. A CUE claim must also demonstrate that if the error(s) had not been made it (they) "would have manifestly changed the outcome." Russell, supra; see also Bustos, 179 F.3d at 1380. Moreover, the Court held in Fugo v. Brown that "to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and . . . persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo, 6 Vet. App. 40, 44 (1993); see also 38 C.F.R. § 20.1404(b); Crippen v. Brown, 9 Vet. App. 412, 420 (1996). As noted above, the CUE claim presented here is a collateral attack on a final Board decision. Cf. Crippen, 9 Vet. App. at 418 (as to collateral attack on prior RO decision); see also Mason (Sangernetta) v. Brown, 8 Vet. App. 44, 51 (1995) (stating that effective date earlier than that awarded in previous RO decision may generally be awarded only if there was CUE in that decision or it never became final); Fugo, supra. In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the moving party is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213 F.3d 1372 (2000). Again, the Board wishes to 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). "'Clear and unmistakable error' requires that error, otherwise prejudicial, must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). "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). In Russell, Fugo and other decisions, the Court has emphasized that merely to aver that there was CUE in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim CUE on the basis that previous adjudication had improperly weighed the evidence can never rise to the stringent definition of CUE. Factual Background. Prior to the Board's decision in April 1979, the RO had issued many rating decisions, including decisions dated in April 1953, March 1954, April 1954, October 1957, June 1958, November 1959, June 1961, November 1967, December 1967, September 1968, March 1969, May 1969, April 1971, July 1972, and November 1972. As noted above, the veteran was released from service in August 1952. The decision of April 1953 established service connection for a psychiatric disorder then classified as dementia praecox, paranoid. The decision of March 1954 reclassified the psychiatric disorder as schizophrenic reaction. A total disability rating for compensation based on unemployability (TDIU) has been in effect since 1971. The above-cited RO decisions resulted in the following ratings for the veteran's psychiatric disorder: 100 percent from 8-17-52 30 percent from 11-17-52 10 percent from 11-17-53 50 percent from 3-1-54 30 percent from 5-1-57 100 percent from 2-28-58 70 percent from 8-20-58 TDIU from 3-21-61 70 percent from 2-1-68 50 percent from 12-1-68 100 percent from 12-8-68 70 percent from 2-1-69 TDIU from 2-22-71 In 1978 the veteran claimed that he should be paid compensation at the 100 percent rate back to 1952 because of brain damage due to electroshock therapy he received while in the military. In several letters the veteran presented a detailed history of the onset and course of his psychiatric disorder and how it affected him and his attempts at employment. In a Statement of the Case dated in September 1978, the RO listed the issue as "Entitlement to a 100% compensation evaluation retroactive to 1952." The reasons for the denial of his claim were that any changes in the evaluation of his psychiatric prior to February 1971 when he began receiving 100 percent compensation went unappealed and became final. In a letter that was accepted as his Substantive Appeal, the veteran discussed the frequency and severity of emotional crises he had experienced since his release from service. He described in detail a psychotic episode he experienced in 1966. He noted that he had done a great deal of reading about schizophrenia, manic-depression and psychosis in general and described some of the problems of dealing with schizophrenia. He stated that he had had almost no control over his emotional behavior during the years prior to 1971 and that most of the employment he was able to secure during these years lasted less than 2 or 3 weeks and that the jobs he did have which lasted longer than a year ended in a psychotic disruption. The veteran's representative provided statements in support of his claim, asserting that decisions of the RO assigning less than 100 percent were not consistent with the evidence of record. It was argued that the symptomatology associated with the schizophrenic reaction had always been very severe and that a 100 percent rating should have been in effect during the entire period since service separation in 1952. As noted above, an effective date earlier than that awarded in any previous RO decision that is final may generally be awarded only if there was CUE in that decision or it never became final. See 38 U.S.C.A. § 5110(a), 7104(b); Flash v. Brown, 8 Vet. App. 332, 340 (1995); Mason v. Brown, 8 Vet. App. 44, 51 (1995). Thus, for the veteran to prevail on his claim for a 100 percent rating retroactive from 1971 to 1952, he must demonstrate that there was CUE in a prior decision or show that a decision prior to 1971 which rated his psychosis as less than 100 percent was not final. The RO, in the Statement of the Case dated in September 1978, informed the veteran that the reasons for the denial of his claim were that any changes in the evaluation of his psychiatric prior to February 1971 when he began receiving 100 percent compensation went unappealed and became final. There is no indication that any of the RO decision prior to 1971 did not become final. Therefore, the Board in its decision of April 1979 focused on whether any of the RO decisions which failed to assign a 100 percent rating for schizophrenic reaction involved CUE. In the April 1979 decision, the Board found that initially, a 100 percent rating had been assigned, effective from the day following the veteran's separation from service in August 1952. Effective November 1952, the 100 percent schedular evaluation was reduced, and remained at less than 100 percent until February 1958. This reduction was based in part on testimony adduced at a 1954 hearing and its continuance was based in part on findings recorded at the time of a 1957 examination. Specifically, at the time of the 1957 examination, it was noted that the veteran was working and that his schizophrenic reaction was improved and in partial remission. In February 1958, the veteran was hospitalized and a 100 percent schedular disability evaluation was reassigned. However, effective August 1958, this evaluation was reduced and remained at a reduced level until March 1961. The RO based this reduction and continuance thereof on the veteran's improvement during hospitalization, on testimony adduced at a 1958 hearing, and of findings recorded at a 1959 examination. The evidence showed that the veteran held several jobs for varying lengths of time. Effective March 1961, the veteran was assigned a total disability evaluation based upon individual unemployability. Effective February 1968, the total rating based on unemployability was terminated and a reduced disability evaluation continued until December 1968. Such reduction and the continuance thereof was based on improvement during periods of hospitalization in 1967, and on findings recorded at an August 1968 examination. Upon hospital discharge in November 1967, it was noted that the veteran had a job as a draftsman waiting for him. At the time on the August 1968 examination, the veteran was working as a draftsman. In December 1968, the veteran was hospitalized, and the RO reassigned a 100 percent schedular disability evaluation. Effective February 1969, the total evaluation was reduced until 1971. This reduction and continuance thereof was based on improvement during hospitalization. As a result of group therapy and medication, the veteran had recovered almost completely and, by the time of discharge, his mental status had returned to the pre-hospital level. He expected to return to work. The veteran did not appeal the aforementioned rating actions. Effective February 1971, the veteran was assigned a total disability evaluation based upon individual unemployability, which is still in effect. In discussing these facts, the Board in April 1979 stated that the evidence fell far short of demonstrating any clear and unmistakable error or errors in the RO decisions which reduced the veteran's disability rating below 100 percent. The Board noted that in each instance, the reduction below 100 percent was supported by evidence which showed that the veteran had improved and that he was able to work or was, in fact, working. Based on these facts, the Board in April 1979 concluded that the RO decisions which failed to grant a 100 percent rating for schizophrenic reaction for the periods from November 1952 to February 1958, from August 1958 to March 1961, from February 1968 to December 1968, and from February 1969 to February 1971, did not involve CUE. The veteran has continued to assert that he should be entitled to compensation at the 100 percent rate continuously since 1952. In 1994, the RO held that the information and evidence submitted by the veteran since the Board's decision of April 1979 was not new and material, such as to justify a reopening of the claim. As indicated above, it is now clear that the effective date of compensation, based on a claim reopened with new and material evidence after a final disallowance, can be no earlier than the date of receipt of the claim to reopen. 38 U.S.C.A. § 5110(i); 38 C.F.R. § 3.400(q), (r). Lapier v. Brown, 5 Vet. App. 215 (1993); Waddell v. Brown, 5 Vet. App. 454, 456 (1993). In Lapier v. Brown, 5 Vet. App. 215 (1993), the Court stated: The sole issue on appeal is whether the veteran is entitled to an earlier effective date for a 100% rating for schizophrenia. This claim was denied by a prior final BVA decision in March 1989. Although the Secretary is required under 38 U.S.C.A. § 5108 (West 1991) to reopen claims that the BVA has previously and finally denied when "new and material evidence" is presented, in this case such a reopening could not result in an earlier effective date because an award granted on a reopened claim may not be made effective prior to the date of receipt of the reopened claim. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) (1992). Lapier at 216-217. Thus, the Board once again points out that the veteran cannot prevail on his claim for a 100 percent rating retroactive to 1952 unless he is able to demonstrate that there was CUE in a prior decision which rated his psychosis as less than 100 percent disabling. In 1996, the RO once again considered the veteran's claim for a total disability evaluation dating back to the time he was discharged from service. The RO noted that a claim based upon new and material evidence could not result in the assignment of an effective date prior to the date of the reopened claim and informed the veteran that since the Board concluded in its decision of April 1979 that there was no CUE in any prior RO rating decision which had decreased the evaluation for his service-connected psychiatric disability, the only way that the decision could be overturned is if CUE was alleged and found with the April 1979 decision of the Board. In a letter addressed to the Board dated in February 2000, the veteran noted that he had been informed that a new claim of CUE must be filed. He asserted that his father had provided incorrect testimony at a hearing in 1954 and that his record was riddled with false or incorrect information. In letters dated in May and June 2002, the veteran asserted that if his parent's testimony in 1954 concerning his employment record were corrected, the proper rating of 70 percent would be applied which would qualify him for a TDIU rating from August 1952 to December 1956 and again from January 1958 to 1960. He stated that documents in the record concerning his employment were only partially true -- that he in fact had only one job as a cabinetmaker after service which he never completed because he became panic stricken. The veteran submitted copies of several decisions of the Board in other cases where the Board held that the veteran was entitled to a 100 percent rating for schizophrenia. In one of the cases, the Board restored a 100 percent rating for schizophrenia because the RO failed to consider the provisions of 38 C.F.R. § 3.343 or 3.344 when the rating was reduced from 100 percent to 70 percent for schizophrenia. In a statement in support of the veteran's motion for revision of the April 1979 Board decision, the veteran's representative argued that the Board in April 1979 failed to address the issue as to whether the RO provided due process and adhered to the provisions governing reductions in each instance. The representative asserted that the failure of the RO and subsequently the Board to take into account the provisions of 38 C.F.R. §§ 3.343 and 3.344 rendered the rating reduction void ab initio. Analysis. As noted above, a CUE claim must identify the alleged error(s) with "some degree of specificity". Crippen, 9 Vet. App. at 420; Fugo, 6 Vet. App. at 44 ("to raise CUE there must be some degree of specificity as to what the alleged error is and . . . persuasive reasons must be given as to why the result would have been manifestly different"). Additionally, it is important to note that there is finality in CUE claim litigation; a claimant may not secure a second adjudication on a CUE claim that has been rejected previously in a final decision, whether by an RO, the Board, or the Court. Russell, 3 Vet. App. at 315. Claims of CUE may not be reopened. Such a final decision would be "res judicata", that is, an issue that has already been decided and that cannot be raised again by the claimant. Ibid; see also Link v. West, 12 Vet. App. 39, 44-45 (1998); Flash v. Brown, 8 Vet. App. 332, 338, 340-41 (1995). In the instant case, the moving party claims CUE in the 1989 Board decision that held that there was no CUE in prior RO decisions. Hence, the Board cannot now revisit a claim of CUE in the prior RO decisions. See Link, Flash, and Russell, all supra. The doctrine of res judicata stands for the legal principle that a final judgment on the merits of a claim, rendered by an adjudicative body of competent jurisdiction, is conclusive as to the rights of the parties and constitutes a bar to a subsequent action on the same claim by the same parties. See McDowell v. Brown, 5 Vet. App. 401, 405 (1993). The principle of collateral estoppel forbids relitigation of the same issue on the same facts. Hazan v. Gober, 10 Vet. App. 511, 521 (1992). In this case, the Board determined in April 1979 that there was CUE in RO decisions that failed to grant a 100 percent rating for schizophrenia for periods prior to February 1971. Thus, that issue is res judicata and may not be reconsidered, absent a showing of CUE in the Board's April 1979 decision. A motion for revision of a Board decision based on CUE 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 manifestly 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. 38 C.F.R. § 20.1404(b). No such specific allegations have been made in this case. The veteran has asserted that the correct facts were not before the RO when it considered his case after the hearing at which his parent testified. He asserts that if his parent's testimony in 1954 concerning his employment record were corrected, the proper rating of 70 percent would have been applied and he would have qualified for a TDIU rating from August 1952 to December 1956 and again from January 1958 to 1960. However, review for CUE must be based on the record that existed when that decision was made. The veteran in effect argues that the correct facts were not known by the adjudicators at the time of the decision challenged rather than that the adjudicators made a materially incorrect characterization of the evidence of record. As noted above, CUE requires that the correct facts, as they were known at the time, were not before the adjudicators. Additionally, it must be demonstrated that the result would have been manifestly different but for the error. As the Court stated: "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The veteran has failed to provide persuasive and specific reasons why correction of that asserted error would have resulted in a manifestly different outcome. See Crippen, Russell, Bustos, and Fugo, all supra. Even if he had provided the corrects facts as he remembers them as to his employment at the time of the hearing in 1954, it cannot be known what the result of the adjudication would have been. To the extent that the veteran asserts that the RO misinterpreted the evidence of record, his position amounts to no more than "a disagreement as to how the facts were weighed or evaluated." No matter how compelling, such a contention cannot form the basis for a claim of CUE. See Luallen, supra. The veteran submitted copies of a decision of the Board in another case where the Board restored a 100 percent rating for schizophrenia because the RO failed to consider the provisions of 38 C.F.R. § 3.343 or 3.344 when the rating for this disorder was reduced from 100 percent to 70 percent. The veteran's representative has asserted that the RO and the Board erred by failing to consider 38 C.F.R. §§ 3.343 and 3.344. In Kitchens v. Brown, 7 Vet. App. 320, 325 (1995), the Court held that when an RO reduces a veteran's disability rating without observing the applicable VA regulations, the reduction is void ab initio. In Ternus v. Brown, 6 Vet. App. 370, 376 (1994), the Court noted that the Board is required to apply all relevant statutes and regulations appropriate to the case before it. Furthermore, the Court held that the RO's failure to apply the reduction regulation for total disability ratings assigned on schedular bases was CUE. Id.; see Olson v. Brown, 5 Vet. App. 430 (1993) (holding that Board's determination that decision below that did not apply reduction regulation did not contain CUE was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law). In Sorakubo v. Principi, 16 Vet. App. 120 (2002), the Court reversed a February 2001 Board decision which held that a March 1977 Board decision that declined to reinstate a compensable rating for a service-connected disability did not contain CUE on the grounds that the 1977 Board decision abused its discretionary authority by not addressing § 3.344. However, in this case neither the veteran nor his representative has identified any RO decision which should have considered either § 3.343 or § 3.344 but did not. See Fugo, 6 Vet. App. at 44 (broad-brush allegations of "failure to follow the regulations" cannot rise to level of CUE). The record contains no specific allegation of error as to any particular RO rating. If CUE is not shown as to any RO decision, any error in the Board decision would not warrant revision of the Board decision on the grounds of CUE. Unless CUE is shown in an RO decision, any error made by the Board in the April 1979 decision would not have manifestly changed the outcome. It would not be possible to show that it is absolutely clear that a different result would have ensued unless it is shown that there was CUE in an RO decision that assigned a rating of less than 100 percent. Additionally, the Board notes that the mere fact that the RO did not discuss a particular regulation in its decision or followup letter to the veteran does not make manifest that it did not consider it. Not until February 1990 were ROs required to include in their decisions "a summary of the evidence considered". 38 U.S.C.A. § 5104(b); see Veterans' Benefits Amendments of 1989, Pub. L. No. 101-237, § 115, 103 Stat. 2062, 2066 (1989). Hence, silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record. Additionally, in VAOPGCPREC 6-92, VA General Counsel pointed out the following: Neither the regulations nor statutes governing VA benefits require that where section 3.343(a) is for application, the rating board must cite it. Further, failure to cite section 3.343(a) does not mean that it was not considered. VAOPGCPREC 6-92 (March 6, 1992). Even though Board decisions are required to include all laws and regulations material to a case, the moving party must at a minimum indicate that either § 3.343 or § 3.344 (formerly found at 38 C.F.R. §§ 2.1170 and 2.1172) were relevant and should have been considered by the Board in April 1979 by identifying an RO decision which should have considered one or both of these regulations. The moving party has not met his burden of persuading the Board that CUE occurred because neither § 3.343 nor § 3.344 are shown to have been applicable at the time of any particular rating decision. In making this determination, the Board notes that the party alleging CUE has the burden of persuasion. See Berger v. Brown, 10 Vet. App. 166, 169 (1997); Graves v. Brown, 6 Vet. App. 166, 170, 171 (1994). Since no specific RO decision which failed to assign a 100 percent rating, or to continue a 100 percent rating, has been identified as containing error, the Board finds that a claim of CUE in the April 1979 decision has not been reasonably raised. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Thus, the motion alleging error in the April 1979 Board decision is dismissed without prejudice to refiling. In light of the caselaw cited above, the Board's April 1979 decision which found no CUE in the aforementioned rating decisions is res judicata as to any claim of CUE in those rating decisions as to any specific assertion of CUE that was before the Board in April 1979. 38 U.S.C.A. § 7111 (West 2002); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc). The Board lacks jurisdiction to consider whether there was CUE in any of those rating decision based upon an argument raised to the Board prior to its decision of April 1979. 38 U.S.C.A. §§ 7104, 7105 (West 1991); 38 C.F.R. §§ 20.101, 20.200 (2001); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002), holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the BVA before the [United States Court of Appeals for Veterans Claims] can exercise jurisdiction over it" (quoting Russell, 3 Vet. App. at 315). See also Olson v. Brown, 5 Vet. App. 430 (1993). Thus, the change of a theory underlying a CUE claim could be interpreted in certain cases as representing not an appeal of the CUE claim rejected by the Board, but an entirely new CUE claim over which neither the RO nor the Board has rendered a decision. It would appear, therefore, that the moving party may either file another motion for review of the April 1979 Board decision on the grounds of CUE with the Board, or file a new claim at the RO asserting CUE in a particular RO rating decision which assigned a rating less than 100 percent for a period prior to 1971 by setting forth a specific assertion of CUE that was not before the Board in April 1979. In either event, the moving party should specifically identify any decision or decisions that contain CUE and set forth clearly and specifically the alleged CUE, or errors, of fact or law in the decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. ORDER The claimant's motion for revision or reversal of the decision of the Board dated April 17, 1996, is dismissed without prejudice to refiling. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Only a final decision of the Board of Veterans' Appeals may be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 1991 & Supp. 2002); Wilson v. Brown, 5 Vet. App. 103, 108 (1993) ("A claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue.") This dismissal under 38 C.F.R. § 20.1404(a) (2002) is not a final decision of the Board. 38 C.F.R. § 20.1409(b) (2002). This dismissal removes your motion from the Board's docket, but you may refile the motion at a later date if you wish.