Citation Nr: 0408481 Decision Date: 04/01/04 Archive Date: 04/16/04 DOCKET NO. 03-05 790 ) DATE ) ) THE ISSUES 1. Whether an August 2001 decision of the Board of Veterans' Appeals (Board), which denied an earlier effective date for an increased rating for a seizure disorder, should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Whether an August 2001 decision of the Board, which denied an earlier effective date for service connection and compensation for sinusitis, should be revised or reversed on the grounds of CUE. 3. Whether an April 1990 decision of the Board, which denied an earlier effective date for service connection for hearing loss, should be revised or reversed on the grounds of CUE. 4. Whether an August 2001 decision of the Board, which denied an earlier effective date for compensation for left hand and right foot disabilities, tinnitus, and glaucoma, should be revised or reversed on the grounds of CUE. REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from August 1967 to February 1972. This matter comes before the Board on the veteran's motion alleging CUE in an April 1990 Board decision which denied, in part, an earlier effective date for service connection for bilateral hearing loss, and an August 2001 Board decision which denied an earlier effective date for increased ratings for a seizure disorder, a left hand disability, and a right foot disability, and for service connection and compensation for tinnitus and glaucoma. The veteran's motion also alleged CUE in the denial of an earlier effective date for the grant of service connection for post-traumatic stress disorder (PTSD), a compensable rating for scars of the scalp and face, and service connection for rhinitis. These issues have not been the subject of a Board decision, and, accordingly, the Board is without jurisdiction to address them in a CUE motion. See 38 U.S.C.A. § 7111(a). FINDINGS OF FACT 1. The August 2001 Board decision was not undebatably erroneous in denying an effective date prior to June 22, 1992, for the award of an increased rating for a seizure disorder. 2. The August 2001 Board decision was not undebatably erroneous in denying an effective date prior to June 22, 1992, for the award of compensation for sinusitis. 3. The April 1990 Board decision was not undebatably erroneous in denying an effective date prior to December 10, 1986, for the award of service connection for hearing loss. 4. The veteran has failed to adequately set forth CUE allegations of fact or law in the August 2001 Board decision denying an earlier effective date for compensation for left hand and right foot disabilities, tinnitus, and glaucoma, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. CONCLUSIONS OF LAW 1. There was no CUE in the August 2001 Board decision in denying an earlier effective date, prior to June 22, 1992, for an increased rating for a seizure disorder. 38 U.S.C.A. §§ 5110, 7104, 7111 (West 2002); 38 C.F.R. §§ 3.400, 20.1403 (2003). 2. There was no CUE in the August 2001 Board decision in denying an earlier effective date, prior to June 22, 1992, for compensation for sinusitis. 38 U.S.C.A. §§ 5110, 7104, 7111 (West 2002); 38 C.F.R. §§ 3.400, 20.1403 (2003). 3. There was no CUE in the April 1990 Board decision in denying an earlier effective date, prior to December 10, 1986, for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5110, 7104, 7111 (West 2002); 38 C.F.R. §§ 3.400, 20.1403 (2003). 4. Because the requirements for a motion for revision of the August 2001 Board decision based on CUE in the denial of earlier effective dates for compensation for left hand and right foot disabilities, tinnitus, and glaucoma have not been met, the motion as to those issues must be dismissed without prejudice to refiling. 38 C.F.R. §§ 20.1403, 20.1404(b) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims CUE in Board decisions dated in April 1990 and August 2001, insofar as they denied earlier effective dates for compensation for several of his service-connected disabilities. Motions filed based on CUE in prior board decisions are not appeals, and the notice and duty to assist provisions of the law are inapplicable to such cases. See 38 U.S.C.A. §§ 5103, 5103A, 7111; 38 C.F.R. §§ 3.159, 20.1402; Livesay v. Principi, 15 Vet. App. 165 (2001). The veteran's essential argument is that the currently assigned ratings for his service-connected disabilities, resulting in a 100 percent schedular evaluation, should be made effective February 19, 1972, the day following his discharge from service. In support, he points to the April 1990 Board decision which found CUE in a prior rating decision addressing gun and shell fragment wound residuals, and assigned an effective date of February 19, 1972, for the disabilities. The specific issues for which he claims that the earlier effective date is applicable are increased ratings for a seizure disorder, a left hand disability, and a right foot disability; service connection and compensation for sinusitis, tinnitus, and glaucoma; and service connection for bilateral hearing loss. A Board decision is subject to revision on the grounds of CUE and will be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a). Motions for review of Board decisions on the grounds of CUE are adjudicated pursuant to regulations, 38 C.F.R. §§ 20.1400-1411. CUE 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). Generally, CUE 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 incorrectly applied. Id. Review for CUE 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). 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 include the following: (1) Changed diagnosis--a new diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) duty to assist-the VA's failure to fulfill the duty to assist; and, (3) evaluation of evidence--a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d); See Pierce v. Principi, 240 F.3d 1348 (Fed.Cir. 2001); Baldwin v. West, 15 Vet.App. 302 (2001), 13 Vet. App. 1 (1999); Bustos v. West, 179 F.3d 1378 (Fed.Cir. 1999); Link v. West, 12 Vet. App. 39 (1998); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993); Russell v. Principi, 3 Vet. App. 310 (1992). Moreover, 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 general, the effective date for a grant of direct service connection is the day following separation from active service, or the date entitlement arose if the claim is received within one year of service; otherwise, the date of claim for the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. I. Seizure disorder The veteran argues that he has had seizures since he was in service, and, therefore, the August 2001 Board decision which granted an 80 percent rating for his seizure disorder was CUE insofar as it denied an effective date of February 1972 for the higher rating. He points to service medical records showing seizures in service, and that he was prescribed medication. Service connection for a seizure disorder was granted by an August 1986 rating decision, which assigned a 10 percent rating for the disability, effective in August 1985. In an April 1990 decision, the Board granted an effective date of February 19, 1972 for the award of service connection and compensation for a seizure disorder. Subsequently, on June 22, 1992, a claim for a higher rating was received. In a decision dated in June 1993, a 40 percent rating was granted, effective June 22, 1992. The veteran appealed, and in a decision dated in August 2001, the Board granted an increased rating to 80 percent for the seizure disorder, but denied an effective date prior to June 22, 1992. In denying the earlier effective date, the Board reasoned that it was not "factually ascertainable" that the veteran's disorder had increased in severity within the one-year period preceding the date of receipt of his claim; that is one year prior to June 22, 1992. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The veteran contends, in essence, that since he had seizures in service, the effective date of the higher rating should be the day after his discharge from service, February 19, 1972. Regulations in effect at the time of the August 2001 Board decision provide that a confirmed diagnosis of epilepsy with a history of seizures warrants a 10 percent rating. At least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last 6 months warrants a 20 percent rating. A 40 percent evaluation requires at least 1 major seizure in the last 6 months or 2 major seizures in the last year; or an average of at least 5 to 8 minor seizures weekly. A 60 percent evaluation requires an average of at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. An 80 percent evaluation requires an average of at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911 (2000). The evidence of record at the time of the August 2001 Board decision included evidence dated from 1983 to 1992, which indicated that the veteran had infrequent seizures during that time, on average no more than one every few years. On a July 1992 VA treatment record, he indicated that his last seizure had been in 1985. Moreover, the veteran did not file a claim for an increased rating until June 1992. The Board considered this evidence, as well as his later assertions of more frequent seizures, in its determination that a higher rating than 10 percent for a seizure disorder was not warranted prior to June 22, 1992. This result was adequately supported by the evidence then of record, and there is nothing to compel a conclusion, to which reasonable minds could not differ, that the Board's denial of an earlier effective date was erroneous. It must be emphasized that a disagreement as to how the facts were weighed or evaluated is not CUE. II. Sinusitis The veteran's initial claim for a sinus disorder was received in July 1992. By rating action dated in January 1993, service connection was granted, and a noncompensable evaluation assigned, effective in July 1992. In a June 1993 rating decision, the RO granted a 10 percent rating for sinusitis, effective June 22, 1992. In August 2001, the Board denied an effective date earlier than June 22, 1992, for the award of service connection and compensation for sinusitis. The veteran contends that his sinus disability was a combat wound residual, and thus included in the claim filed in 1972, which the April 1990 Board decision found to have remained open since that time. However, the issues addressed in that decision involved disabilities which were explicitly shown to be present in the service medical records. Thus, the evidence of record in 1972 was sufficient to establish service connection for those disabilities. In contrast, service medical records do not show any sinus disorder, including in the records of treatment for shell fragment wounds. There is no record of a sinus disorder until June 1992, when the veteran filed his claim for service connection, and the grant of service connection was on a secondary basis, i.e., secondary to residuals of shell fragment wounds to the head. The April 1990 decision also found that the failure to provide an examination was CUE, and that the claim had therefore remained open since then. As stated above, a failure in the duty to assist cannot form the basis of CUE. Similarly, "grave procedural error" does not invalidate the finality of an RO decision. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The veteran did not claim a sinus disability in his original claim in 1972, the evidence of record at that time did not show a sinus disorder to be present, and any failures in the duty to assist, such as failure to provide an examination, are not CUE. Moreover, disagreement as to how the facts were weighed or evaluated is not CUE. Thus, the effective date of June 22, 1992 for the grant of service connection is supportable, and hence not CUE. The effective date for a compensable rating for a service- connected disability may not be earlier than the effective date of service connection. Thus, the Board finds that there was no undebatable error of fact or law that would have manifestly changed the outcome in the August 2001 Board decision denying an earlier effective date for compensation for sinusitis, and the Board finds no CUE in the February 1991 Board decision. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1403. III. Hearing loss Service connection for bilateral hearing loss was granted by the RO in November 1987, effective December 10, 1986, based on evidence showing some impairment of hearing while the veteran was in service; a claim for service connection raised at a hearing in December 1986; and a VA examination in February 1987 documenting the presence of a hearing loss disability for VA purposes. In April 1990, the Board denied an earlier effective date for the grant of service connection for bilateral hearing loss, on the basis that the original claim for that disability had been received on December 10, 1986, and that the disability was not part of the claim for shell fragment wounds for which a claim was pending. He contends, in substance, that that part of the April 1990 Board decision which granted an effective date of February 18, 1972, for combat wound residuals, should be applied to the hearing loss as well. He claims CUE in the failure to provide an examination in 1972. The April 1990 Board decision granting an earlier effective date for several disabilities was based on CUE in the 1972 rating decision in failing to properly develop the claim at that time, in connection with a claim for shell and gunshot wound residuals. The Board concluded that the claims were still pending. However, in that decision, the Board also specifically found that hearing loss was not related to the combat wound residuals. The determination that hearing loss was not due to combat wounds was a reasonable interpretation of the evidence, and, hence, not undebatably erroneous. In this regard, it is worth noting again that, under the current law, any failures in the duty to assist, such as failure to provide an examination, are not CUE. Moreover, again, a disagreement as to how the facts were weighed or evaluated is not CUE. The Board examined the evidence of record, applied the law, and came to a different conclusion than that desired by the veteran, but which was nevertheless a reasonable interpretation. There was no undebatable error of fact or law that would have manifestly changed the outcome, and the Board finds no CUE in the April 1990 Board decision. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1403. IV. Left hand and right foot disabilities, tinnitus, and glaucoma With respect to the remaining issues, a valid motion for 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. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to filing under this subpart. 38 C.F.R. § 20.1404(b). In the veteran's December 2002 arguments in support of his CUE motion, he claimed that grants of higher ratings of 30 percent for a left hand disability and 10 percent for a right foot disability, and of service connection and compensation for tinnitus and glaucoma, should be effective February 19, 1972. These earlier effective date claims were denied by the Board in the August 2001 decision. He has failed to allege any specific error in the August 2001 Board decision as to these issues. Moreover, in subsequent correspondence, dated in May 2003 and June 2003, the veteran omitted any mention of these disabilities in his list of the disabilities for which he was pursuing a CUE claim. In view of these circumstances, the Board finds that the veteran has not presented a valid CUE claim as to these issues, and the motion must be dismissed without prejudice. 38 C.F.R. § 20.1404(b). ORDER The motion to revise or reverse the August 2001 Board decision denying an earlier effective date for an increased rating for a seizure disorder on the basis of CUE is denied. The motion to revise or reverse the August 2001 Board decision denying an earlier effective date for service connection and compensation for sinusitis on the basis of CUE is denied. The motion to revise or reverse the April 1990 Board decision denying an earlier effective date for service connection for bilateral hearing loss on the basis of CUE is denied. The motion to revise or reverse the August 2001 Board decision denying an earlier effective date for compensation for left hand and right foot disabilities, tinnitus, and glaucoma on the basis of CUE is dismissed without prejudice to refiling. ____________________________________________ L. W. TOBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION ON YOUR MOTION FOR REVIEW FOR CLEAR AND UNMISTAKABLE ERROR The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision on your motion for the Board to review one or more of its final decisions for clear and unmistakable error (CUE). If you are satisfied with the outcome of this decision, you do not need to do anything. However, if you are not satisfied with this decision, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision. None of these things is mutually exclusive -you can do all three at the same time if you wish. However, if you file a Notice of Appeal with the Court and motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. There is no time limit for filing a motion for reconsideration or a motion to vacate with the Board. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision. See 38 C.F.R. 20.1090 --20.1003. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Address your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. VA FORM JUN 2003(R S) 4597b Page 1 Continued How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence submitted by or on behalf of the appellant. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, you should write directly to the Court for information. Upon request, the Court will provide you a state-by-state listing of persons admitted to practice before the Court who are available to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003(R S) 4597b Page 2