Citation Nr: 0810385 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-36 755 ) DATE ) ) THE ISSUE Whether a January 2001 decision of the Board of Veterans' Appeals (Board) should be revised or reversed on the grounds of clear and unmistakable error (CUE). ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The veteran, the moving party, served on active duty from September 1974 to March 1984. This matter comes to the Board from an October 2005 motion by the moving party alleging clear and unmistakable error in a January 2001 Board decision which denied entitlement to the restoration of a 30 percent rating for sarcoidosis and entitlement to a disability rating in excess of 10 percent for sarcoidosis. The Board notes that in May 2006, the veteran appears to have attempted to reopen his previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD). This matter is, accordingly, referred to the RO for the appropriate adjudication. FINDINGS OF FACT 1. In a January 2001 decision, the Board denied entitlement to the restoration of a 30 percent rating for sarcoidosis and entitlement to a disability rating in excess of 10 percent for sarcoidosis due to the veteran's failure to report for VA pulmonary function testing based on the provisions of 38 C.F.R. § 3.655 . 2. The moving has failed to clearly and specifically set forth any alleged errors of fact or law in the January 2001 Board decision, the legal or factual basis of such allegations, and why the result would have been manifestly different but for the alleged error. CONCLUSION OF LAW The moving party's allegation of CUE in the January 2001 Board decision fails to meet the threshold pleading requirements for revision of the Board decision on the grounds of clear and unmistakable error. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005), became effective on November 9, 2000. Implementing regulations were created and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The VCAA redefined VA's duty to assist a veteran in the development of a claim. However, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to claims of clear and unmistakable error in prior final Board decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board's Rules of Practice codified at 38 C.F.R. §§ 20.1400- 1411 (2007). Pursuant to 38 C.F.R. § 20.1404(a), the motion alleging clear and unmistakable error in a prior Board decision 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 the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. The motion filed by the veteran appears to satisfy the filing and pleading requirements set forth in 38 C.F.R. § 20.1404 for a motion for revision of a decision based on clear and unmistakable error. A prior Board decision is final and binding, but is reversible, if there is clear and unmistakable error. 38 U.S.C.A. § 7111. A decision of the Board that revises a prior Board decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1406 (2007). The Board's Rules of Practice including 38 C.F.R. § 20.1403, in pertinent part, define clear and unmistakable error 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. (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. The Court, in Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)), stated that for clear and unmistakable error to exist, (1) "(e)ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., 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 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. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The Board recognizes that a CUE motion is not a claim or application for VA benefits. Therefore, duties associated with such claims or applications are inapplicable, including notification under 38 U.S.C.A. § 5103(a) of the existence of evidence which might complete a claimant's application for benefits; and VA's duty to assist in the development of such claims. 38 C.F.R. § 20.1411 (c) and (d). In addition, neither the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) nor the provisions of reopening claims on the grounds of new and material evidence under 38 U.S.C.A. § 5108 apply to CUE motions. 38 C.F.R. § 20.1411 (a) and (b). A CUE motion is not an appeal and, with certain exceptions, is not subject to the provisions of 38 C.F.R. Parts 19 and 20 which relate to the processing and disposition of appeals. 38 C.F.R. § 20.1402. CUE 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. A valid claim for CUE requires 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 it face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). In order for there to be a valid claim of CUE, the correct facts, as they were known at the time, must not have been before the adjudicator or the proper laws or regulations must have been incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). A difference of opinion as to how the evidence was weighed is not CUE. An appellant "must assert more than just a disagreement as to how the facts were weighed or evaluated." Russell, quoted in Allin v. Brown, 6 Vet. App. 207 (1994). In this matter, the veteran moves for revision of the January 2001 Board decision on the grounds of clear and unmistakable error. The veteran alleges that there were several inaccuracies in the January 2001 Board decision and that the Board "engaged in a campaign to slander," such as to warrant a revision. Notwithstanding the veteran's allegations of inconsistencies and assertions that the medical evidence of record supported an increased disability rating for his sarcoidosis, the January 2001 denial of entitlement to the restoration of a 30 percent rating for sarcoidosis and denial of entitlement to a disability rating in excess of 10 percent for sarcoidosis was based on the veteran's failure to report for VA pulmonary function testing. Pursuant to 38 C.F.R. § 3.655 (2001), when a claimant without good cause fails to report for examination, the claim for an increased rating will be denied. In this respect, the veteran reported for VA examinations in March 1996 and May 1997; however, he failed to complete/report for pulmonary function tests. Furthermore, the veteran declined an offer to be rescheduled for VA examination in his August 1997 hearing before a Decision Review Officer. The veteran was advised by means of a June 1996 rating action, subsequent Supplemental Statements of the Case, and an October 1998 Board remand that pulmonary function test results were essential to his claim and that his failure to attend any scheduled examination without good cause might have a detrimental effect on his claim. The veteran did not show good cause for failing to execute his pulmonary function tests during the March 1996 and May 1997 VA examinations; accordingly, his claims were denied. After a careful review of the record, the Board concludes that the veteran has not reasonably raised a claim of CUE with respect to the January 2001 Board decision. The Board notes that his claim is not valid because he has made no specific contention of how the law or facts in existence at the time of the January 2001 Board decision were either not considered or misapplied. His argument that the medical evidence of record at the time demonstrated entitlement to a 30 percent disability rating for sarcoidosis is nothing more than asking the Board to reweigh the evidence in his favor and to disregard the veteran's failure to present for VA pulmonary function testing and the provisions of 38 C.F.R. § 3.655. Asking the Board simply to reweigh the evidence can never rise to the stringent definition of CUE. See Fugo, 6 Vet. App. at 44. Accordingly, in view of the fact that the appellant has failed to comply with 38 C.F.R. § 20.1404(b) with respect to the January 2001 Board decision, the claim must be denied because of the absence of legal merit or lack of entitlement under the law. See Luallen, 8 Vet. App. at 95; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The motion for revision of the January 2001 Board decision on the grounds of clear and unmistakable error is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs