Citation Nr: 0810233 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-29 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether clear and unmistakable error exists in August 1950 and March 1962 rating decisions that denied service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran served on active duty from December 1941 to December 1945; his WD AGO Form 53-55 (Enlistment Record and Report of Separation-Honorable Discharge) reflects 12 days lost under AW 107. This matter comes to the Board of Veterans' Appeals (Board) following a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In September 2004, a Deputy Vice Chairman at the Board granted the veteran's motion, through his representative, to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). In an October 2004 decision, the Board dismissed without prejudice to refiling the veteran's claims of clear and unmistakable error (CUE) in August 1950 and March 1962 rating decisions. The Board found that the veteran had not satisfied the pleading requirements for valid claims of CUE. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an September 2006 Order, the Court reversed the Board's decision to the extent that the Board found that the veteran's assertion of CUE based on the RO's alleged failure to consider certain medical records was not sufficiently pled, and otherwise vacated and remanded the remaining CUE matters/pleadings for the Board to proceed to decide those on the merits. The issue on appeal was remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a) (West 2002). In January 2007, the Board contacted the veteran by letter and notified him of the right to submit additional argument and/or evidence concerning the issue on appeal. Later that month, the veteran submitted a 90-day Letter Response Form in which he checked the box that he was submitting enclosed argument and/or evidence and that he waived his right to have his case remanded to the Agency of Original Jurisdiction (AOJ) for review of this evidence. The Board notes that a review of the claims file does not reflect that any evidence or argument was submitted by the veteran with the 90-day Letter Response Form. Thereafter, in a May 2007 Appellant's Brief, the veteran's representative offered additional argument in support of the veteran's claims. In May 2007, the Board remanded the veteran's claims for CUE to the AOJ for consideration of the claims on the merits. In January 2008 the Appeals Management Center (AMC) in Washington, D.C. continued the denial of the veteran's claims for CUE and returned these matters to the Board. FINDINGS OF FACT 1. In an August 14, 1950 rating decision, the RO denied the veteran's claim for service connection for a back disability on the grounds that there was no clinical evidence demonstrating that dorso-lumbar strain was either incurred in or aggravated by service; the RO notified the veteran of its decision, and of his appellate rights, but he did not initiate an appeal within one year. 2. In a March 29, 1962 rating decision, the RO denied the veteran's claim for service connection for a back disability on the grounds that the veteran's then-current back disability was not related to service; the RO notified the veteran of its decision, and of his appellate rights, but he did not initiate an appeal within one year. 3. The RO's August 14, 1950 and March 29, 1962 rating decisions represent reasonable applications of extant law to the facts that were then known. CONCLUSIONS OF LAW 1. The RO's August 14, 1950 rating decision denying service connection for back disability is final. Chapter 12 of Title 38 U.S.C. (1950); 38 C.F.R. § 19.2 (1950 Supp.). 2. The RO did not commit CUE when it denied service connection for back disability in an August 14, 1950 rating decision. 38 U.S.C.A. § 5109A (West 2002); 38 U.S.C. § 726 (1950); Chapter 12 of Title 38 U.S.C. (1950); 38 C.F.R. § 3.105 (2007); 38 C.F.R. §§ 3.78, 3.80, 3.86 (1950 Supp.). 3. The RO's March 29, 1962 rating decision denying service connection for back disability is final. 38 U.S.C. § 4005 (1962); 38 C.F.R. § 19.2 (1962). 4. The RO did not commit CUE when it denied service connection for back disability in a March 29, 1962 rating decision. 38 U.S.C.A. § 5109A (West 2002); 38 U.S.C. §§ 301, 310, 312, 313 (1962); 38 C.F.R. § 3.105 (2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1962). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that the RO's denial of service connection for a back disability in an August 14, 1950 rating decision and a March 29, 1962 rating decision should be revised or reversed based on CUE. As neither decision was appealed by the veteran, they are both final. Chapter 12 of Title 38 U.S.C. (1950); 38 U.S.C. § 4005 (1962); 38 C.F.R. § 19.2 (1950 Supp. & 1962). The law provides that a prior final rating action will be revised only on the basis of CUE. 38 C.F.R. § 3.105(a) (2007). CUE requires a finding that "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). A determination that there was CUE must be based on the record and the law that existed at the time of the prior unappealed rating decision. Russell, 3 Vet. App. at 314. Also, in a valid CUE claim, 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, 1380-81 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 405 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If the error alleged is not the type of error that, if true, would be CUE on its face, if the claimant is only asserting disagreement with how the RO evaluated the facts before it, if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist, or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim should be dismissed or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. See Luallen v. Brown, 8 Vet. App. 92 (1995); Fugo, 6 Vet. App. at 44 (valid CUE claim requires some degree of specificity as to what the alleged error is). As a threshold matter, the Board finds that a number of the arguments advanced by the veteran alleging CUE have been made with the requisite specificity. See 38 C.F.R. § 20.1404(b). The Board notes that while the veteran has been represented by Disabled American Veterans since 1999, he personally filed his claim for CUE. Although CUE motions must be pled with specificity, a veteran's pro se motion must be read sympathetically, notwithstanding the specific pleading requirements set forth in the regulations. See Canady v. Nicholson, 20 Vet. App. 393, 401-02 (2006). Further, the manifestly changed outcome may be inferred from pro se pleadings, even though not explicitly stated. Id. The Board notes that the regulatory provisions extant in 1950 and 1962, with respect to establishing service connection for a particular disability, were essentially the same as they are today. Compare 38 C.F.R. § 3.78 (1950 Supp.) and 38 C.F.R. §§ 3.303, 3.304 (1962), with 38 C.F.R. §§ 3.303, 3.304 (2007). That is to say that, in order to establish service connection for a particular disability, there must be evidence that establishes that such disability is traceable to disease or injury that began in or was aggravated by service. Id. Likewise, with respect to establishing service connection for a presumptive wartime chronic disability, such as arthritis, the regulatory provisions in 1950 and 1962 were also essentially the same as they are today. Compare 38 C.F.R. §§ 3.80, 3.86 (1950 Supp.) and 38 C.F.R. §§ 3.307, 3.309 (1962), with 38 C.F.R. §§ 3.307, 3.309 (2007). At the time of the RO's initial August 14, 1950 rating decision, service medical records were available. A December 1941 enlistment examination report reflects that the veteran did not have any musculoskeletal defects. However, upon evaluation of the veteran's feet, a notation of "L.S. mid. back" was recorded. When seen in August 1942, it was noted that the veteran had been hospitalized for right lumbosacral strain of the back after he had jumped from a trash truck. He was returned to duty. In late November 1943, the veteran was admitted to the hospital after he had fractured his right fibula during a parachute jump. At that time, the veteran's muscular system was intact. An examination of his bones and joints revealed a cast on his right leg. Reports surrounding the veteran's hospitalization from November 1943 to January 1944 are negative for any subjective complaints or clinical findings relating to the veteran's back. When seen in May 1944, it was noted that the veteran had fallen from a truck two weeks earlier and that he had sustained a contusion to the middle thoracic and left subscapular area. Upon physical evaluation, there was tenderness in the middle thoracic area with some muscle spasm in the left subscapular muscles. X-rays of the back revealed no evidence of any bone injury. The veteran was returned to duty. A few days later, it was noted "pain still present- not especially severe." The veteran was given massage and returned to duty. Upon hospital admission in July 1945 for unrelated disabilities, it was noted that the veteran had a previous history of being in "paratroops" and of having a strained back and broken ankle. Examinations of both the veteran's muscular system and his bones and joints were negative. A December 1945 separation examination report reflects that the veteran had broken his right leg, injured his back and was hospitalized for three months in April 1943. Upon examination at discharge, there were no limitations to the veteran's musculoskeletal system. Also of record at the time of the RO's August 14, 1950 rating decision were statements from the veteran's family members, dated in May 1950, reflecting that the veteran had broken his leg and injured his back during a parachute jump in service and that he had complained of back pain since that time. A. B. related that since service, the veteran's back pains were so severe that he had lost time from work and had to spend a lot of time in bed. A. B. also noted that prior to his military service, the veteran had not had any backache or other trouble. A report, dated in May 1950, submitted by W. H. B., D. C. reflects that the veteran sustained a broken leg and had injured his back during a parachute jump in service. Dr. W. H. B. noted that X-rays of the back were taken on May 11, 1949 (these reports are not contained in the claims file.) An office memorandum to the RO from the Medical Administrative Officer, dated in May 1950, was also of record at the time of the RO's August 14, 1950 rating decision. The Medical Administrative Officer indicated that he had received the RO's request for medical information regarding the veteran, and that the following information was noted in his medical certificate in May 1950: The veteran was in "paratroops," and had fractured his right leg in a jump, and that his current occupation was a metal finisher. The veteran complained of pain in the upper spine, which affected his arms and made it difficult to hold objects. He related that he had first noticed "it" six to seven years previously but that it had increased within the previous six months. An examination of the spine showed some pain of the cervical spine on side motion and pain in the dorsal spine at the 8th dorsal vertebrae. The lumbar spine was noted to have been normal. X-rays of the cervical spine were negative. X-rays of the dorsal spine showed no evidence of pathology other than minute osteophytic formation at the right and left lateral margins of the inferior articular surface of the body of the last dorsal vertebrae. A diagnosis of mild arthritis of the lower dorsal vertebrae was entered. In a June 1950 Certificate of Attending Physician, a Dr. J. E. H. notes that he had examined the veteran in March and June 1950 and that there were no findings relating to the back. Additionally of record in August 1950 was a report of a June 1950 VA examination report, as well as a treatment report. Upon evaluation, the veteran gave a history with respect to his back which is consistent with that previously reported in this decision. An examination of the spine by VA in June 1950 was essentially normal with the exception of some slight tenderness to palpation, but there was no paravertebral tenderness or spasm present. X-rays of the dorsal vertebrae and lumbar spine revealed slight to small degree of left- sided scoliosis of the lumbar spine, which was unaccompanied by any evidence of bone or joint disease or injury. The diagnosis was chronic dorsolumbar strain. Evidence of record at the time of the RO's March 29, 1962 rating decision included all of the evidence reported above and an April 1946 letter from I. E. B., M. D., reflecting that X-rays of the dorsal lumbar spine showed slight shortening of the anterior altitude of the bodies of the 11th and 12th dorsal vertebrae. Dr. I. E. B. related that the shortening was not enough to say definitely that there was a compression fracture but that there was a history of a severe back injury while the veteran was in service and, for that reason, it was impossible to state that the slight shortening might not have resulted from that injury. It was also noted that there was also the possibility of some disturbances of the intervertebral discs of that region. Additionally, in a February 1962 report, submitted by J. R. S., M. D., the veteran was noted to complain of having back pain after he slipped and fell as a result of crawling out of a coal bin at his place of employment. He related that he had immediate severe pain, but that he had continued to work. However, the next day the veteran reported that he found it hard to get out of bed, so he remained in bed for three days until he made it to the hospital on crutches. The veteran indicated that he was unable to bend, cough, sneeze, or stoop without experiencing back pain. He related that the pain was on the left side and was primarily in the left hip and buttock and went down halfway into the thigh and increased with any attempt to stand up, bend from side to side or turnover in bed. After an examination of the veteran's spine, Dr. J. R. S. concluded that the veteran had a severely acute muscular and ligamentous injury of his lower back with probable involvement of the intervertebral disc in his lower lumbar spine, with left sciatic radiation as evidence by muscular weakness in his left leg and foot. Dr. J. R. S. noted that he had treated the veteran two years previously for a similar attack of pain, but that there was very little evidence of any nerve root irritation, and in the intervening two years, the veteran had had more or less recurrent attacks of low back pain, some of which were quite severe, resulting in difficulty putting on socks or shoes, but that the veteran had managed to go to work and perform his regular duties. Dr. J. R. S. further noted that because of the acuteness of the illness, he had placed a call to have the veteran admitted to a VA hospital on February 7, 1962. A report of VA hospital summary, covering a period from February to March 1962, reflects that the history with respect to the veteran's slip and fall accident at his place of employment was noted. A physical examination of the lumbar spine revealed positive straight leg raising on the right and left at 40 degrees and 10 degrees, respectively, and mild tenderness of the mid-low back. X-rays of the lumbar spine showed narrowing of the joint space at L5-S1 with minimal degenerative changes. At discharge in March 1962, the veteran was noted to have had moderate discomfort in the low back, which radiated down the left thigh. However, he felt that he was able to return to work. There was no evidence of any neurological deficits. The diagnoses were degenerative joint disease of the lumbosacral spine and acute lumbosacral strain. Also of record in March 1962 was a March 1962 report submitted from Mt. Sinai Hospital. A review of that report reflects that the veteran complained of having intermittent back pain for years. The veteran related that he experienced pain in the small of his back after he had moved a heavy object one week previously. He reported that the pain went into the back of both legs, but mostly the left leg to the level of the knee but not below. The veteran denied having paresthesia and numbness in the legs. He related that his pain was aggravated by sneezing, coughing, or deep breathing. The veteran indicated that he had weakness of both legs. He gave a history of having constantly gnawing upper back pain since being a paratrooper in service. It was noted that X- rays of the spine, performed in June 1959, showed a slight left mid-lumbar rotary scoliosis, with no evidence of any change in the dorsolumbar spine. The final diagnosis was acute low back sprain. In the August 14, 1950 rating decision the RO denied the veteran's claim of service connection for a back disability on the basis that there was no clinical evidence demonstrating that "dorso-lumbar strain", diagnosed by VA during the June 1950 examination of the veteran, was either incurred in or aggravated by service. By the March 29, 1962, rating decision which, in additional to service medical records, considered additional private and VA medical reports, the RO concluded that the veteran had been seen for lumbosacral strain during service that had resolved and resulted in no chronic back disability as evidence by his discharge examination report, which showed no musculoskeletal defects. The RO also noted that X-rays of the lumbar spine, performed by VA in May 1950 and June 1960, showed no evidence of joint disease or injury, and that VA hospital reports revealed that the veteran was being treated for a more recent back injury. The RO consequently concluded that the lumbosacral strain that the veteran sustained in service was acute and had resolved without any chronic back disability. The veteran has argued that the August 14, 1950 and March 29, 1962 rating decisions include numerous errors which constitute CUE. First, the veteran maintains that had the VA examiner in June 1950 considered the "substantial evidence of record" before him, he would have concluded that the veteran had a back disability that originated in service. Second, the veteran argues that VA failed to provide him with X-rays of his lumbar spine during his discharge examination in December 1945. Third, he maintains that the RO in August 1950 failed to obtain private and VA treatment reports, to include X-ray reports of the lumbar spine and additional service medical records (to include copies of those records that were already of record and of poor quality), all of which might corroborate his claim that his back disability had its onset during active service. Fourth, the veteran contends that the RO failed in August 1950 to discuss the June 1950 report of Dr. J. E. H. or the statements submitted by the veteran's family members in May 1950, which supported his claim that he had sustained a back injury as a result of a parachute jump during service. Fifth, the veteran asserts that VA failed to provide him with a special orthopedic examination in June 1950. The veteran has also made numerous allegations that the RO failed to properly interpret or give proper weight to both service medical records and post-service VA and private medical examination and treatment reports that were of record at the time of the August 14, 1950 and March 29, 1962 rating decisions. The veteran has contended that if this medical evidence had been read and interpreted correctly, it would have demonstrated that he had sustained an injury to his back during service and that he had a chronic back disability as a result thereof or that he had a pre-existing back disability which was aggravated by his active service. In this regard, the veteran has maintained that the RO in August 1950 failed to properly examine and thoroughly study his December 1941 enlistment examination report, reflecting a notation of "L.S. mid. back". The veteran alleges that this notation could have been construed to show that he had a pre-existing back disability which had been aggravated by his active service. Additionally, the veteran contends that the RO decisions interpreted a medical record as containing the notation "no bone injury demonstrated" when it should have been interpreted as "history of bone injury demonstrated." The veteran alleges that his interpretation of the document is supported by a handwriting expert. In this case, the Board liberally construes the veteran's allegations, in part, as assertions that the facts as they were known at the time of the RO decisions were not before the adjudicator. In other words, if the RO in the August 14, 1950 and March 29, 1962 rating decisions had correctly interpreted and considered all of the veteran's service medical records (which included reference to in-service incidents involving his back), lay statements, and post- service medical reports, the RO would have undebatably granted service connection for a back disability. Initially, the Board has considered the veteran's arguments that the RO failed to obtain private and VA treatment reports, to include X-rays of the lumbar spine, which, he argues, would have substantiated his claim that his back disability was related to military service. This allegation by the veteran is nothing more than argument that VA failed to fulfill its duty to assist at the time of the August 14, 1950 and March 29, 1962 rating decisions. Such an allegation does not constitute CUE. Also, some of the veteran's arguments advanced in this case appear to relate to the weight the RO accorded certain evidence in the August 14, 1950 and March 29, 1962 rating decisions. Mere disagreement with how the facts were weighed or evaluated also does not constitute CUE. The Board also notes that in his notice of disagreement, received by the RO in August 2002, the veteran recounted numerous VA and private reports, dated in the 1990s, in support of his claim for CUE in the August 1950 and March 1962 rating decisions. Notwithstanding this fact, a determination that there was CUE must be based on the record and the law that existed at the time of the prior unappealed rating decision. Russell, 3 Vet. App. at 314. Otherwise, to the extent that the veteran's allegations constitute an assertion that the correct facts as they were known at the time of the August 14, 1950 and March 29, 1962 decisions were not before the adjudicators, his claim of CUE in those rating decisions must fail. It is clear in this case that service medical records, lay statements, and post-service VA and private medical reports were before the RO in both August 14, 1950 and March 29, 1962. As noted previously, service medical records reflect that the veteran was seen for right lumbosacral strain and a contusion to the middle and thoracic spine in August 1942 and May 1944, respectively, but that a back disability was not noted at discharge in December 1945. Furthermore, when the veteran fractured his right fibula in November 1943, he did not complain of back pain during the three-month period of hospitalization from November 1943 to January 1944. While Dr. I. E. B. noted in April 1946 that there was a slight shortening of the anterior altitude of the bodies of the 11th and 12th dorsal vertebrae, he indicated that the shortening was not enough to say definitely that there had been a compression fracture associated with the veteran's reported back injury following a parachute jump in service. He did not medically relate such dorsal vertebral shortening, or for that matter possible intervertebral disc disturbance, to the veteran's military service. The veteran has specifically claimed that the RO failed to address certain medical records and statements submitted by the veteran and members of his family in both the August 14, 1950 and March 29, 1962 rating decisions. In particular, the veteran has contended that the RO failed to consider an April 1946 medical report from Dr. I. E. B. The Board notes that the failure to specifically "discuss" each item of evidence in a "review" of the evidence of record has been held in the context of allegations of CUE in an RO rating decision not to constitute CUE. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Furthermore, the April 1946 private medical report from Dr. I. E. B. was not received by the RO until after the August 14, 1950 rating decision. It was subsequently considered in the March 29, 1962 rating decision. The veteran has also specifically alleged that the analysis provided by the RO in its August 14, 1950 rating decision, indicates that the veteran was not diagnosed in service with lumbosacral strain, and thus, pertinent service medical records were not reviewed by the RO when it considered the veteran's claim. The veteran's service medical records clearly reflect his treatment in August 1942 for lumbosacral strain. In both notice of decisions issued the veteran in August 1950 and April 1962, the RO identified having reviewed the evidence of record, which at that time included the veteran's service medical records. The Board is not in a position some 58 years after the fact to offer a retrospective opinion as to the meaning of the sentence, "No such condition shown in service" as noted in the August 14, 1950 rating decision. Needless to say, in the March 29, 1962 rating decision, the RO clearly considered that the veteran had been treated in August 1942 for lumbosacral strain, but still found, based on the evidence of record, that the veteran's current back disability was not related to service. As noted above, the veteran failed to appeal the March 29, 1962 rating decision. Additionally, the veteran has alleged that the RO decisions misinterpreted a May 1944 radiologic report notation. The RO believed the report notation as stating, "No bone injury demonstrated," while the veteran has contended that the report notation actually states, "History of bone injury demonstrated." In July 2002, a reported handwriting expert, K. E. N., opined that the notation reflected the acronym "hs" for "history" versus the word "No." The Board has considered the opinion of K. E. N., which apparently involves no more than a review of the May 1944 radiologic report. The Board has conducted a thorough review of the veteran's service medical records. In particular, an October 1943 radiologic report notes a typewritten (preliminary) clinical diagnosis of fracture of the clavicle. The handwritten notation in the October 1943 radiologic report following the X-ray is identical to that under scrutiny in the May 1944 radiologic report. Thus, under the theory espoused by both the veteran and K. E. N., the notation in the October 1943 radiologic report would also be reflective of "history of [clavicle] bone injury demonstrated." However, an October 1943 treatment note associated with the October 1943 radiologic report, reflects that the veteran had injured his right shoulder tumbling. The X-ray of the right shoulder is noted in the October 1943 treatment note as being negative. This negative finding is consistent with an interpretation of the October 1943 radiologic report handwritten notation as reflecting "No bone injury demonstrated." The Board finds the similarity in the handwritten notation in the October 1943 and May 1944 radiologic reports and the report of a negative X-ray in the October 1943 treatment note very persuasive. Thus, the RO's interpretation of the May 1944 radiologic report handwritten notation as noting "No bone injury demonstrated," is reasonably supported by the veteran's service medical records. Therefore, the Board finds that the veteran has not shown that the correct facts as set forth in available records were not before the RO. Furthermore, the veteran has not otherwise shown that the RO misapplied the law in the August 14, 1950 or March 29, 1962 rating decisions to the facts at hand. Therefore, it is the Board's conclusion that the evidence of record at the time of the August 14, 1950 and March 29, 1962 rating decisions provided reasonable support for the RO's determination that the veteran's back disability was not related to his period of service. It is important for the Board to note that the determinative question in this case is not whether it would have been reasonable for an adjudicator to have granted service connection for the veteran's back disability in either August 14, 1950 or March 29, 1962. Rather, the question at this stage is whether, given the law extant at the time and the evidence then of record, it is clear (undebatable) that a different result should have ensued. Here, for the reasons stated, the Board must answer that question in the negative. Even if a retrospective review suggests that service connection could have been granted, because this point is debatable in light of the law and evidence then available, the veteran cannot prevail on his CUE claim. Finally, the Board is aware of the veteran's report that he did not appeal either the August 14, 1950 or March 29, 1962 rating decisions because he was intimidated by the United States government and also because he believed he would need to hire a lawyer to prosecute his appeal. Notwithstanding the veteran's fear or misassumption, the law is clear and the Board is bound by it. Hence, the veteran's claim of CUE in August 14, 1950 and March 29, 1962 rating decisions that denied service connection for a back disability must fail. On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). Although the VCAA is applicable to many types of claims, the United States Court of Appeals for Veterans Claims (Court) has held that it does not apply to claims of CUE. See, e.g., Livesay v. Principi, 15 Vet. App. 165 (2001). ORDER The appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs