Citation Nr: 1101465 Decision Date: 01/12/11 Archive Date: 01/20/11 DOCKET NO. 10-44 268 ) DATE ) ) THE ISSUES 1. Whether a December 1955 decision of the Board of Veterans' Appeals (Board) that denied service connection for schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error. 2. Whether an August 1985 decision of the Board that denied entitlement to service connection for schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error. 3. Whether an August 1986 decision of the Board that found no obvious error in the August 1985 Board decision, should be revised or reversed on the grounds of clear and unmistakable error. 4. Whether a July 1989 decision of the Board that denied entitlement to service connection for schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error. 5. Whether a March 1994 decision of the Board that granted entitlement to service connection for schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error. 6. Whether an April 2007 decision of the Board that denied an initial disability rating higher than 10 percent prior to September 7, 2001, granted a 30 percent disability rating from September 7, 2001, to June 3, 2004, and denied an initial disability rating higher than 50 percent since June 3, 2004, for schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error. (The issues of entitlement to an increased rating for schizophrenia and for an assignment of a total disability rating based upon unemployability (TDIU) prior to August 23, 2004, are the subject of a separate decision of the Board.) REPRESENTATION Moving party represented by: Julie Jetton, Attorney ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran (moving party) served under honorable conditions from February 1955 to March 1955. This case comes before the Board on a motion by the moving party alleging clear and unmistakable error (CUE) in the December 1955, August 1985, August 1986, July 1989, March 1994, and April 2007 Board decisions. The moving party moved the Board to find that those decisions were clearly and unmistakably erroneous. The written submissions specifically alleged CUE in the December 1955, August 1985, August 1986, July 1989, March 1994, and April 2007 Board decisions. 38 C.F.R. § 20.1400(a) (2009). FINDINGS OF FACT 1. The December 1955 Board decision that denied service connection for schizophrenia was adequately supported by the evidence then of record and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in December 1955, were not before the Board in December 1955, or that incorrect laws or regulations were applied or that correct laws or regulations were not applied. 2. The August 1985 Board decision that denied service connection for schizophrenia was adequately supported by the evidence then of record and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in August 1985, were not before the Board in August 1985, or that incorrect laws or regulations were applied or that correct laws or regulations were not applied. 3. The August 1986 Board decision that found no obvious error in the August 1985 Board decision was adequately supported by the evidence then of record and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in August 1986, were not before the Board in August 1986, or that incorrect laws or regulations were applied or that correct laws or regulations were not applied. 4. The July 1989 Board decision that denied service connection for schizophrenia was adequately supported by the evidence then of record and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in July 1989, were not before the Board in July 1989, or that incorrect laws or regulations were applied or that correct laws or regulations were not applied. 5. The March 1994 Board decision that granted service connection for schizophrenia was adequately supported by the evidence then of record and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in March 1994, were not before the Board in March 1994, or that incorrect laws or regulations were applied or that correct laws or regulations were not applied. 6. In January 2009, United States Court of Appeals for Veterans Claims (the Court) vacated and remanded the April 2007 Board decision that denied an initial disability rating higher than 10 percent prior to September 7, 2001, granted a 30 percent disability rating from September 7, 2001, to June 3, 2004, and denied an initial disability rating higher than 50 percent since June 3, 2004, for schizophrenia. CONCLUSIONS OF LAW 1. The December 1955 decision that denied service connection for schizophrenia, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A; 7111 (West 2002); 38 C.F.R. §§ 3.63 (1955); 20.1400-20.1411 (2009). 2. The August 1985 decision that denied service connection for schizophrenia, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 311, 337, 4004(b), (1985) 5109A; 7111 (West 2002); 38 C.F.R. §§ 3.306, 3.156 (1985); 20.1400-20.1411 (2009). 3. The August 1986 decision that found no obvious error in the August 1985 decision, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 311, 337, 4003, 4004(b), (1986) 5109A; 7111 (West 2002); 38 C.F.R. §§ 3.305, 3.306, 3.156, 19.185(a) (1986); 20.1400-20.1411 (2009). 4. The July 1989 decision that denied service connection for schizophrenia, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 4004(b), (1989) 5109A; 7111 (West 2002); 38 C.F.R. §§ 3.305, 3.306, 3.156, (1989); 20.1400-20.1411 (2009). 5. The March 1994 decision that granted service connection for schizophrenia, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A; 7111 (West 2002); 38 C.F.R. §§ 3.306, 3.156, (1994); 20.1400-20.1411 (2009). 6. In the absence of a final decision, the Board has no jurisdiction to adjudicate the merits of the motion for revision of the April 2007 decision based on clear and unmistakable error. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The notice and duty to assist provisions of the law and regulations are not applicable to clear and unmistakable error (CUE) claims and motions. Livesay v. Principi, 15 Vet. App. 165 (2001). Thus, discussion of the notice and duty to assist provisions in this case is not required. 38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002); 38 C.F.R. §§ 20.1400- 20.1411 (2009). The Board has the authority to revise a prior Board decision on the grounds of CUE. 38 U.S.C.A. § 7111 (West 2002). A claim requesting review under that statute may be filed at any time after the underlying decision is made. Previous decisions that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a) (2010). However, if the evidence establishes CUE, the prior decision will be reversed and amended. A determination that a prior decision involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator ( there must be 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 of 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. 38 C.F.R. § 20.1403(c) (2010). 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. VA'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) (2010). 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) (2010). CUE is a very specific and rare kind of error. It is the 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. Thus, 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. 38 C.F.R. § 20.1403(a) (2010). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). Mere disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92 (1995). A decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. A motion for revision of a prior Board decision based on CUE 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 VA file number; and, the date of the Board 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 these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404(a) (2010). The motion claiming CUE in a Board decision 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 an explanation of 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 requirements. 38 C.F.R. § 20.1404(b). Motions which fail to comply with those requirements shall be dismissed without prejudice to refilling. Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); 38 C.F.R. § 20.1404(b) (2010). In April 1996, the Veteran filed a motion alleging CUE in December 1955, August 1985, August 1986, and July 1989 Board decisions. With respect to those four decisions, he alleged that the Board erred in denying service connection for schizophrenia because the evidence consistently demonstrated that his psychiatric disability was incurred during service, and did not preexist his service, and that the Board decisions incorrectly applied the law with respect to preexisting conditions and in- service aggravation. In a July 2010 motion, the Veteran alleged that the March 1994 Board decision failed to assign an effective date of service connection from March 1955, and failed to find CUE in the earlier Board decisions that did not grant service connection for schizophrenia. The Veteran also alleged that there was CUE in the April 2007 Board decision stating that the Board should have found CUE in the March 1994 Board decision with respect to the effective date of service connection and for not considering the lay evidence of record. Based upon these arguments, the Board finds that the motions adequately set forth an alleged specific error of fact or law in accordance with 38 C.F.R. § 20.1404(b) (2010. Accordingly, the Board will proceed with an analysis of the Veteran's motions. Motion for Revision of the December 1955 Board decision At the time of the December 1955 Board decision, the record included the Veteran's service medical records, including the in- service psychiatric treatment records, Medical Board report, and separation examination, but without the Veteran's entrance examination. The Board found that the Veteran's psychiatric hospitalization proximate to his entry to active duty, eleven days after he entered service, and the in-service diagnosis of dissociative reaction, acute, moderate, manifested by ideas of reference, delusions of grandeur and flattened affect, together with statements in the record that evidenced enuresis from the age of ten and a lifelong pattern of "temper tantrums" and seclusiveness, clearly and unmistakably established the preservice existence of a nervous condition. Based upon the Veteran's separation diagnosis, and because there was no evidence of any post-service psychiatric condition, the evidence was insufficient to establish that the preexisting nervous condition was adversely affected or was otherwise aggravated by active duty. Under the laws and regulations extant at the time of the December 1955 Board decision, veterans were presumed to have been in sound condition at their entry into active service except as to defects, infirmities, or disorders noted at service entrance or where clear and unmistakable (obvious or manifest) evidence showed that a disease existed prior to entry to active service. Only such conditions recorded in an examination report were considered as noted at service entrance. 38 C.F.R. § 3.63(b) (1955). Manifestations or symptoms of chronic disease from date of enlistment, or so close to that date that the disease could not have originated in so short a period, will be accepted as clear and unmistakable proof that the disease existed prior to entrance into active service. 38 C.F.R. § 3.63(f) (1955). With regard to the presumption of soundness, the presumption could be rebutted by such factors as the time of inception or manifestation of the disease after the date of entrance into service, as disclosed by service medical records. Also to be considered were other entries or reports of proper military and naval authorities as they related to the existence of the condition at the time of or prior to enlistment. Such records were to be accorded the weight to which they were entitled in consideration of other evidence and sound medical reasoning. VA Regulation & Procedure (R&PR) 1063(I)(j) (August 9, 1946). With regard to aggravation of a pre-existing injury or illness, injuries and diseases noted prior to service or by clear and unmistakable evidence to have had inception prior to enlistment would have been conceded to have been aggravated by service where such disability underwent an increase in severity during service unless such increase was shown by clear and unmistakable evidence, including medical facts and principles, to have been due to the natural progress of the disease. 38 C.F.R. § 3.63(f) (1955). A specific finding that the increase in disability was due to the natural progress of the disease would be met by evidence that demonstrated an acceleration in progress of the disease that was normally expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. VA Regulation & Procedure (R&PR) 1063(I)(k) (August 9, 1946). After a review of the evidence, the Board finds that the December 1955 decision was adequately supported by the evidence then of record and was not undebatably erroneous. The record does not demonstrate that the correct facts, as they were known in December 1955, were not before the Board in December 1955, or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. Despite that the Veteran's entrance examination was not of record at the time of the decision, or that the entrance examination later evidenced that the Veteran was found to have no psychiatric illness on entrance to the military, the Board's finding of a preexisting psychiatric illness was legally correct. On March 1955 Medical Board Report, the Veteran's psychiatric illness was determined to have preexisted his military service by a neuropsychiatric panel. The Veteran was determined to have a predisposition that was of a severe schizoid personality that had been aggravated by his induction into military service, but that after psychiatric hospitalization, his psychiatric illness was determined to be in remission. His psychiatric illness was found to have a marked impairment on his military service, with no impairment for civilian life, demonstrating influence peculiar to military service. The Board considered the Medical Board report, which also included a history provided by the Veteran's father that the Veteran had a history of seclusiveness, along with the proximity of the Veteran's psychiatric illness to his entry into service, and determined that the Veteran's nervous condition preexisted his service. Such a finding comported with the law, which stated that clear and convincing evidence of a preexisting condition could be shown by such factors as the time of inception or manifestation of the disease after the date of entrance into service, and other entries or reports of military and naval authorities. Although the Veteran's representative seeks to apply later case law in finding that the Board erred in its decision, it cannot be ignored that at the time of the December 1955 decision, it was acceptable and proper to review the totality of the evidence of record, including in-service medical reports and other competent evidence, in determining by sound medical reasoning, for example, by neuropsychiatric board, that the disease preexisted service and was not aggravated by service. Accordingly, the Board finds no error in the December 1955 Board decision that found no evidence that the Veteran's preexisting nervous condition was not aggravated by his service. Additionally, at the time of the December 1955 decision, the Board was not precluded from relying upon its own medical judgment to support its conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board cannot substitute its own medical judgment for that of medical professionals). A medical member of the Board participated in the December 1955 Board decision and was a signatory to that decision. His signature signified agreement with the conclusions that the evidence, considered with the application of generally accepted medical principles, did not demonstrate that the Veteran had a psychiatric disability that should have been service-connected. Bowyer v. Brown, 7 Vet. App. 549 (1995) (Board's position was substantially justified in a pre-Colvin decision in relying on its own medical judgment). As the December 1955 decision was ascribed to by the medical member of the panel, it cannot be said that all the evidence of record supported the moving party's position. The opinion that the evidence was insufficient to establish service connection was supported by the medical member of the panel, and the Board apparently relied on his medical judgment in deciding the appeal. The Board further notes that although the Veteran contends that he was not of sound mind when he signed his name to the March 1955 finding of a preexisting psychiatric disability that was not aggravated by service, and that he also did not speak English well when asked to sign the English document, the Board does not find merit in that argument. For one, the in-service psychiatric records state that the Veteran understood English well and also show that following electroshock therapy, his mental illness was determined to be in remission at the time of the Medical Board evaluation. Further, whether the Veteran signed the document was not determinative in this case, as the Board decision in 1955 was based upon a review of the in-service diagnosis and treatment, post-service evidence, and a proper application of the law. Accordingly, the Board finds that the December 1955 decision to deny the appeal for service connection for a nervous disorder was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400-20.1411 (2010). Consequently, the motion for reversal or revision of the December 1955 Board decision denying entitlement to service connection for a nervous disorder on the grounds of CUE must be denied. Motion for Revision of the August 1985 Board decision Procedurally, with regard to the August 1985 Board decision that readjudicated the Veteran's claim based upon the submission of new evidence, the Board notes that that decision did not become final until August 1986, when, upon the Veteran's motion for reconsideration, a panel of six members found no obvious error in the August 1985 decision and determined that decision to be final. In August 1985, the Board reviewed the evidence of record and determined that a new factual basis warranting modification of the December 1955 Board denial of service connection for a nervous disorder had been presented. Accordingly, the Board reevaluated the merits of the claim for service connection. The evidence before the Board at the time of the August 1985 decision included a statement made by a fellow service member contending that he had known the Veteran prior to service, and that he had been a "completely normal person," but that fifteen days after entering service, the Veteran suffered a nervous crisis. Evidence also included a June 1955 diagnosis of schizophrenic reaction, undifferentiated type and a January 1982 treatment record showing a diagnosis of schizophrenia. Evidence also included an April 1955 social work note stating that the Veteran's first psychiatric "bout" had occurred three days after entering service. The Veteran did not know when his first episode had been. His condition had worsened after separating from service and included visual and auditory hallucinations, deliriums of prejudice and grandeur, violent explosions, and incoherent sentences. In April 1984, the Veteran and his family and friend testified at a hearing before the Board. At the hearing, the Veteran reported that he didn't feel the same once he left service. His mother stated that she had never seen the Veteran in that kind of state prior to his enlistment. The August 1985 Board decision summarized the evidence received since the December 1955 final decision, noting that it was the Veteran's contention that while serving in the National Guard, immediately prior to his enlistment into service, he had no signs or symptoms of mental illness, and that his initial crisis occurred while in service. The Veteran further contended that the cause of his stress was recruitment into military service. The Board summarized the Veteran's in-service psychiatric records, and noted similar pertinent facts as had been made in December 1955 concerning the Veteran's preservice history. It was noted that the Veteran had not been hospitalized prior to service, and that he had finished high school successfully. He had played sports, but had also kept to himself and was described as seclusive. It was noted that while in service, the Veteran was transferred to the psychiatric ward eleven days after entrance for bizarre behavior and an inability to establish a relationship with his cadre. The Board determined that the additional evidence did not materially change the evidentiary foundation upon which the prior decision had been based. It was determined that the evidence of record clearly demonstrated that the Veteran's psychiatric disability preexisted his service and that the symptoms described in service did not establish aggravation greater than the natural progression of the disease. Accordingly, because the new evidence was considered to be insufficient to change the facts upon which the previous decision was based, the claim was denied. At that time of the August 1985 decision, new and material evidence was thought to exist when supplemental reports or corrections of reports from the service were department received before or after the final Board decision. 38 C.F.R. § 3.156(b) (1985). Because that was not the case, the Board instead readjudicated the claim pursuant to 38 U.S.C.A. § 4004(b), which stated that when a claim is disallowed by the Board, it cannot thereafter be reopened and allowed, and no claim based upon the same factual basis could be considered. 38 U.S.C.A. § 4004(b) (1985). The Board found that a new factual basis for service connection had been presented, namely, that the psychiatric disability had not preexisted the Veteran's service, but in fact had incurred during service, and the claim was accordingly readjudicated. Under the laws and regulations extant at the time of the August 1985 Board decision, a Veteran who served during a period of war or during peacetime service after December 31, 1946, was presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that a disability manifested in service existed before service would rebut that presumption. 38 U.S.C.A. §§ 311, 337 (1985). A preexisting injury or disease was considered to have been aggravated by active service, where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (1985). For peacetime service, the specific finding requirement that an increase in disability was due to the natural progress of the condition was met when the available evidence of a nature generally accepted as competent showed that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. 38 C.F.R. § 3.306(c) (1985). The Board notes that 38 C.F.R. § 3.306(c) was later amended to pertain to peacetime service prior to December 7, 1941, effective May 1, 1974. 57 Federal Register 59296 (December 19, 1992). However, for a claimed based upon CUE, the effective date of the amendment cannot serve as an avenue of relief. In this case, the Veteran had peacetime service, and thus 38 C.F.R. § 3.306(c) as it was codified in 1985 is applicable to his claim. After a review of the evidence, the Board finds that the August 1985 decision was adequately supported by the evidence then of record and was not undebatably erroneous. The record does not demonstrate that the correct facts, as they were known in August 1985, were not before the Board in August 1985, or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. In finding that the new contentions and facts did not create a new factual basis for consideration of service connection, the Board found that despite the Veteran's contention that his psychiatric illness did not preexist his service and was incurred in service was outweighed by the in-service medical records and findings. Although the Veteran now argues that the lay evidence presented at the April 1984 hearing and the sworn statements that were newly of record at the time of the August 1985 decision met that burden, at the time of the 1985 Board decision, it was not error to place less weight upon those statements in determining that the evidence clearly demonstrated a preexisting illness that was not aggravated by service. It would seem, then, that the Veteran has a different interpretation of the evidence and disagrees with the weight given, or in this case not given, to certain evidence. As the record at the time of the August 1985 decision included medical evidence both for and against the conclusion that the Veteran's had psychiatric disability had existed prior to service and had not been aggravated by service, the moving party's argument remains one that the Board should have weighed or evaluated the evidence differently, and, thus, cannot form the basis for a finding of CUE. 38 C.F.R. § 20.1403(d)(3) (2009). Accordingly, the Board finds that the August 1985 decision to deny the appeal for service connection for a nervous disorder was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400-20.1411 (2010). In August 1985, the Board found that newly received evidence was presented that would give rise to a new factual basis on which to consider the claim, reweighed the evidence of record, but ultimately determined that the previous decision was adequately supported by the facts and the law, and that the newly received evidence were not sufficient to change that determination. Consequently, as discussed above, the motion for reversal or revision of the August 1985 Board decision denying entitlement to service connection for a nervous disorder on the grounds of CUE must be denied. Motion for Revision of the August 1986 Board decision Next, the Veteran alleges CUE in the August 1986 Board decision that found no obvious error in the August 1985 Board decision. The law extent at the time of the August 1986 Board decision stated that reconsideration of an appellate decision could be accorded at any time by the Board on request by the appellant upon allegation of obvious error of fact or law or on the Board's own motion to correct an obvious error in the record. 38 U.S.C.A. § 4003 (1986); 38 C.F.R. § 19.185(a) (1986). The Board is thus called to determine whether there is CUE in the August 1986 decision that determined that there was no obvious substantive error of fact or law in the August 1985 decision. Similarly to CUE, a mere difference of opinion in the evaluation of the evidence, or a disagreement with the ultimate result reached, does not constitute such obvious error within the purview of the law. The August 1986 Board decision, signed by a panel of six Board Members that included two medical members, determined that despite the Veteran's contentions that the 1985 Board decision was contrary to the testimony provided at the April 1984 hearing, there was no obvious error of law in the August 1985 decision. The Board stated that although the lay testimony was one element to support a claim for service connection, it was not determinative of the matter. In reviewing the August 1985 decision, the Board determined that there did exist clear and unmistakable evidence that the Veteran's psychiatric illness preexisted his service, in the form of service medical records finding that to be the case and the proximity of the psychiatric illness to the Veteran's entrance to service, thus rebutting the presumption of soundness. The Board further found that that the evidence did not establish that the preexisting disorder was aggravated by service due to the brief nature of the Veteran's service, and the findings as stated in the service medical records. Accordingly, because it was the determination of the Board that the law was correctly applied to the facts, the motion for reconsideration was denied. After a review of the evidence, the Board finds that the August 1986 decision was adequately supported by the evidence then of record and was not undebatably erroneous. The record does not demonstrate that the correct facts, as they were known in August 1986, were not before the Board in August 1986, or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. Although the Veteran maintains that the presumption of soundness was not rebutted by clear and unmistakable evidence, such a claim is a disagreement with the weighing or evaluating the evidence, and cannot prevail as CUE. 38 C.F.R. § 20.1403(d)(3) (2010). Further, the Board notes that the standard of obvious error, which the Board applied in August 1986, is one that is higher than preponderance of the evidence, the usual standard in determining claims, and that there is no indication that the higher standard was met at that time. Although the Veteran seeks to demonstrate that the lay evidence sufficiently established that his psychiatric disability did not preexist his service and first incurred in service, the law at the time allowed for the presumption of soundness to be rebutted with clear and convincing evidence to the contrary, and such evidence could include history, manifestations, and clinical course, as was applied by the Board. 38 C.F.R. § 3.305(b) (1985). Likewise, aggravation could be rebutted by evidence that the increase in severity of a disease was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. 38 C.F.R. § 3.306(c) (1985). Although later case law changed the interpretation of the law, and the law itself has since been changed, such changes cannot rise to the level of CUE. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Accordingly, the Board finds that the August 1986 decision that found no obvious error in the August 1985 decision was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400-20.1411 (2010). The August 1986 Board decision carefully examined the determination reached in the August 1985 decision, and the facts and law upon which the decision was based, and found no obvious error in the application of the facts and law. The Board finds no error in the August 1986 decision and thus, the motion for reversal or revision of the August 1985 Board decision denying entitlement to service connection for a nervous disorder on the grounds of CUE must be denied. Motion for Revision of the July 1989 Board decision In July 1989, the Board reviewed the evidence of record and determined that a new factual basis warranting modification of the previous Board denials of service connection for a psychiatric disorder was not presented. After reviewing the evidence of record, the Board found that the new evidence did not alter the factual basis upon which the previous decisions had been predicated. The new evidence included lay statements submitted by the Veteran and his family to the effect that his psychiatric disability first manifested during his service, and that prior to his service, the Veteran displayed no symptoms of any psychiatric disability. In 1986 and in 1988, the Veteran's physician stated that he had treated the Veteran for schizophrenia since 1982. An August 1988 lay statement stated that following service, the Veteran showed violent rage and destroyed property. Also, an August 1988 statement was submitted by a friend that the Veteran had no emotional problem or sign of mental disability prior to his active service. In weighing the new evidence, the Board found that the evidence of record, as a whole, did not change the basis upon which the previous denials were decided. The Board found that despite the lay evidence, the in-service medical evidence demonstrating that the Veteran's psychiatric disability preexisted his service, and was not aggravated by his service, was more probative and that the new evidence had previously been considered and did not give rise to new factual basis upon which to reconsider the claim. 38 U.S.C.A. § 4004(b) (1989). Accordingly, the claim was denied. After a review of the evidence, the Board finds that the July 1989 decision was adequately supported by the evidence then of record and was not undebatably erroneous. The record does not demonstrate that the correct facts, as they were known in July 1989, were not before the Board in July 1989, or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. Although the Veteran maintains that the presumption of soundness was not rebutted by clear and unmistakable evidence, such a claim is a disagreement with the weighing or evaluating of the evidence, and cannot prevail as CUE. 38 C.F.R. § 20.1403(d)(3) (2010). Motion for Revision of the March 1994 Board decision First, the Veteran contends that the March 1994 Board decision that granted service connection for schizophrenia contained CUE because the Board did not assign an effective date of March 1955 for the grant of benefits. However, the Board observes that the March 1994 decision did not state at any time the effective date of service connection for schizophrenia. The effective date of the grant of service connection was assigned by the RO pursuant to an April 1994 rating decision. Subsequent to a grant of service connection by the Board, the claim is thereafter transferred to the RO for the assignment of a disability rating and effective date. Accordingly, because the March 1994 decision does not contain the error that the Veteran alleges, that argument cannot prevail and must necessarily be denied with respect to the March 1994 Board decision. Next, the Veteran contends that the March 1994 Board decision erred in not finding CUE in the previous Board denials of the Veteran's claim. The Board notes that at the time of the March 1994 Board decision, there did not exist a motion for CUE on the part of the Veteran, and thus a claim for CUE could not have been adjudicated. Despite whether a claim had been submitted, that argument, and that the Board should have found CUE on its own, cannot prevail because at the time of the March 1994 decision, the laws implementing CUE had not yet come into existence. 38 U.S.C.A. § 7111, Pub. L. No. 105-111, 111 Stat 2272 (Nov. 21, 1997). Accordingly, because at the time of the March 1994 decision the Board did not have the ability under the law to find CUE in a previous Board decision, and no other claim for CUE was existent, the Veteran's argument on that basis cannot prevail and must necessarily be denied. Motion for Revision of the April 2007 Board decision With regard to the April 2007 Board decision, all final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the United States Court of Appeals for Veterans Claims, and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400 (2010). The Court has vacated and remanded the April 2007 Board decision and thus, there is no final decision for the Board to review on the basis of clear and unmistakable error. Accordingly, the Board does not have jurisdiction to adjudicate the merits of the motion and it is dismissed because there is no final April 2007 Board decision. 38 C.F.R. § 20.1400 (2010). ORDER The December 1955 Board decision denied service connection for schizophrenia was not clearly and unmistakably erroneous. The appeal is denied. The August 1985 Board decision that denied service connection for schizophrenia, was not clearly and unmistakably erroneous. The appeal is denied. The August 1986 Board decision that found no obvious error in law or fact in the April 1985 Board decision, was not clearly and unmistakably erroneous. The appeal is denied. The July 1989 Board decision that denied service connection for schizophrenia, was not clearly and unmistakably erroneous. The appeal is denied. The March 1994 Board decision that granted service connection for schizophrenia, was not clearly and unmistakably erroneous. The appeal is denied. The motion for revision of the April 2044 Board that denied increased ratings for schizophrenia is dismissed. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs