Citation Nr: 1123569 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-36 075A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board of Veterans' Appeals (Board) January 2010 decision that dismissed claims for service connection for nerve damage of the right lip, attention deficit disorder (ADD), and a seizure disorder. REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran moves for revision of a January 2010 Board decision to which he was a party. Such motions are within the Board's original jurisdiction. 38 C.F.R. § 20.1410 (2010). FINDINGS OF FACT The Veteran has failed to adequately set forth the alleged CUE, or errors of fact or law, in the January 2010 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 threshold pleading requirements for a motion for revision of the Board's January 2010 decision based on CUE have not been met, the motion must be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404(a), (b) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A final decision issued by the Board may not be revised or reversed except upon a finding of CUE. 38 U.S.C.A. § 7111(a) (West 2002). CUE 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. 38 C.F.R. § 20.1403(a) (2010). If a movant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999); Fugo v. Brown, 6 Vet. App. 40 (1993). 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). Motions for review of prior final Board decisions on the grounds of CUE are subject to specific filing and pleading requirements, which are set forth in Rule 1401 of the Rules of Practice of the Board, found in Part 20 of title 38, Code of Federal Regulations. Failure to comply with these requirements results in dismissal of the motion without prejudice to re-filing. See 38 C.F.R. § 20.1404(a), (b) (2010). Rule 1404(a) specifies that a motion for revision of a 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 Department of Veterans Affairs 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. In addition, a motion for revision of a Board decision based on 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, nonspecific allegations of error, are insufficient to satisfy this requirement. See Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Other examples of situations that are not CUE include a changed diagnosis, i.e., a new diagnosis that "corrects" an earlier diagnosis considered in the Board decision; the Secretary's failure to fulfill the duty to assist; and, allegations based on improper evaluation of evidence, i.e., a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d)(1-3) (2010). 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). The Veteran's allegation of CUE is, in essence, that the Board committed CUE by failing to adjudicate the issues of a right lip disorder, ADD, and a seizure disorder. The January 2010 Board decision had dismissed the issues finding that the Veteran had not submitted a timely substantive appeal as to those claims; therefore, the Board concluded that it did not have jurisdiction over the claims. The Veteran noted that the issues were remanded by the United States Court of Appeals for Veterans Claims (Court) to the Board in a July 2009 memorandum decision. The July 2009 Court decision had remanded those matters for the issuance of a statement of the case based, in part, on the Secretary of VA's concession that a statement of the case had not been provided. The January 2010 Board decision noted that, while it was generally bound by the findings of the Court (the law of the case doctrine), an exceptional circumstance existed in this case: the Court was laboring under the erroneous assumption, perpetuated by the Secretary's concessions, that the Veteran had never received a statement of the case with respect to the right lip, ADD, and seizure disorder issues. In fact, a review of the claims folders found that a statement of the case was in fact provided to the Veteran in October 2004 with respect to the aforementioned issues. As noted in the January 2010 Board decision, the Court of Appeals for the Federal Circuit has articulated, and the Court has recognized, "three exceptions to the law of the case doctrine: (1) When the evidence at trial was substantially different from that in the former trial upon when the appellate court based its decision; (2) when the controlling authority has since made a contrary decision of law; and (3) when the appellate decision was clearly erroneous." Chisem v. Brown, 8 Vet. App. 364, 375 (1995) (citing Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc. 761 F.2nd 649, 657 (Fed. Cir. 1985)); see also Teten v. West, 13 Vet. App. 560 (2000). The Board notes that the copy of the substantive appeal provided by the Veteran's representative in connection with his CUE motion is dated in August 2004, prior to the issuance of the October 2004 SOC. A substantive appeal must be filed after the issuance of a statement of the case. 38 C.F.R. § 20.200 (2010). "[W]here a veteran does not timely file a Substantive Appeal, and VA does not waive the Substantive Appeal requirement, the Board may decline to exercise jurisdiction over the matter." Percy v. Shinseki, 23 Vet. App. 37, 41 (2009)(citing Roy v. Brown, 5 Vet. App. 554, 556 (1993)); see also 38 U.S.C.A. § 7105(3)(d) (West 2002). The Board has considered the Veteran's arguments but finds that he has failed to cite to specific errors of fact or law in the January 2010 Board decision which are outcome-determinative. He has not addressed the bases for the Board's dismissal of the claims, the application of the third exception to the law of the case doctrine per Chisem and the fact that the Board may decline jurisdiction in cases where a Veteran does not timely file a substantive appeal, in his CUE motion. Significantly, he has not explained why the alleged errors would lead to a grant of service connection for the claimed disorders. As noted above, under 38 C.F.R. § 20.1404(b), non-specific allegations of failure to give due process or non-specific allegations of error, such as failure in the duty to assist, are insufficient to satisfy the motion requirement. Such an argument of error can not constitute clear and unmistakable error. See 38 C.F.R. § 20.1403(d). Moreover, an allegation that the Board in a prior decision improperly weighed the evidence cannot form the basis of CUE. See Damrel, 6 Vet. App. at 246 (1994). Here, the Veteran was provided a notice of appellate rights along with the January 2010 Board decision. When he did not appeal that decision, he forfeited his right to contest how the Board had weighed the evidence of record. See 38 U.S.C.A. §§ 7104(a), 7105(a), (d)(1) (providing that decisions of the agency of original jurisdiction may be appealed to the Board by filing a notice of disagreement and substantive appeal). In conclusion, the Board finds that the requirements for a valid claim of CUE have not been satisfied with respect to the January 2010 Board decision. The Veteran has not provided reasons as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that but for an alleged error the result of the Board's January 2010 decision would have been manifestly different. It is not enough to argue that something is CUE; rather, in order to raise a valid claim of CUE, the moving party needs to provide specific reasons as to why any alleged error was outcome-determinative. See Bustos, 179 F. 3d at 1381. Accordingly, in view of the fact that the Veteran has failed to comply with 38 C.F.R. § 20.1404(a) and (b) in his attempt to challenge the January 2010, Board decision on the basis of CUE, the Board has no alternative but to dismiss his January 2010 motion for revision without prejudice to re-filing. ORDER The motion to revise the January 2010 Board decision with respect to the issues of entitlement to service connection for nerve damage of the right lip, ADD, and a seizure disorder on the basis of CUE is dismissed without prejudice as to re-filing. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs