Citation Nr: 0723526 Decision Date: 07/30/07 Archive Date: 08/14/07 DOCKET NO. 07-00 108A ) DATE ) ) THE ISSUE Whether a March 1998 decision of the Board of Veterans' Appeals (Board) should be revised or reversed on the basis of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Roxanne D. Neloms, Esq. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from August 1942 to October 1945. This matter comes before the Board on a motion filed by the veteran, who is the moving party. In a January 2007 statement it was contended that a Board decision of March 20, 1998, which denied a compensable rating for service-connected residuals of a tonsillectomy, should be revised or reversed on the basis of CUE. FINDINGS OF FACT 1. The Board decision of March 20, 1998, was consistent with the evidence then of record and the law in effect at that time. 2. To the extent any error was committed in the Board decision of March 20, 1998, the record does not reflect that had it not been made it would have manifestly changed the outcome. CONCLUSION OF LAW The Board's decision of March 20, 1998, was not the product of CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that, as a general rule, VA has a duty to assist a claimant in developing the facts pertinent to his or her claim, and to notify him or her of the evidence necessary to complete an application for benefits. The Veterans Claims Assistance Act of 2000 (VCAA), which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. However, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to claims of CUE in prior Board decisions or in prior rating decisions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). The provisions of 38 C.F.R. § 20.1403, set forth what constitutes CUE and what does not, and provide 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. 38 C.F.R. § 20.1403. (Authority: 38 U.S.C.A. § 501(a), 7111). The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, 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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The January 2007 motion essentially contends that the March 1998 Board decision was the product of CUE because it is asserted that it was not based upon a thorough and contemporaneous examination as mandated by a June 1997 Board remand. Although it was acknowledged that a VA medical examination was conducted in September 1997, the motion contends that this examination was inadequate, in part, because it did not evaluate the veteran for complaints of hearing loss, loss of balance, dizziness, and hypertension as residuals of the service-connected tonsillectomy. In short, the motion contends that there was a violation in the duty to assist. However, a violation in the duty to assist does not constitute CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, the Court has indicated that an inadequate examination does not constitute CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992) (An error made by a VA doctor who examines a veteran is "not administrative error during the adjudication process which would require the prior decision to be reversed or amended..."). The Board further notes that service connection has been denied for hearing loss, hypertension and vertigo, to include as secondary to the tonsillectomy by an October 1968 Board decision. More recently, a May 2004 Board decision found that new and material evidence had not been received to reopen claims of service connection for hypertension and vertigo. Consequently, these symptoms are not for consideration in evaluating the service-connected tonsillectomy residuals, and, thus, the fact they were not evaluated by the September 1997 VA medical examination was not error. In addition, a review of the March 1998 Board decision reflects that it accurately summarized the medical evidence then of record, as well as the applicable statutory and regulatory criteria. Therefore, the record indicates that the Board's March 1998 decision was consistent with the evidence then of record and the law in effect at that time. There being no other assertions of CUE regarding the March 20, 1998, decision, the Board concludes that to the extent any error was committed in that decision, the evidence does not show that, had it not been made, it would have manifestly changed the outcome; it is not absolutely clear that a different result would have ensued. Accordingly, that decision was not the product of CUE, and the benefit sought must be denied. See 38 C.F.R. § 20.1403. (CONTINUED ON NEXT PAGE) ORDER Inasmuch as the March 20, 1998, Board decision was not the product of CUE, the motion is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs