Citation Nr: 0810605 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 07-37 881 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a September 1999 Board of Veterans Appeals decision which denied service connection for chronic low back disability. (Additional issues of entitlement to service connection for erectile dysfunction, whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a stomach disorder, whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a bilateral leg and foot disorder (other than metatarsalgia of the right foot), entitlement to an initial increased disability rating in excess of 10 percent for metatarsalgia of the right foot, and whether a retroactive payment for an award of service connection for a low back disorder was correctly calculated are the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The moving party had active service from February 18, 1980, to June 27, 1980. This matter comes before the Board of Veterans' Appeals (Board) on motion by the moving party alleging CUE in a Board decision dated in September 1999 which denied service connection for a chronic low back disability. FINDINGS OF FACT 1. In a September 15, 1999, decision, the Board denied service connection for a chronic low back disability. 2. The moving party has failed to clearly and specifically set forth any alleged errors of fact or law in the 1999 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 September 1999 Board decision fails to meet the threshold requirements for revision of the Board decision on the grounds of CUE. 38 U.S.C.A. § 7111 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.1403, 20.1404 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law in November 2000 and subsequently codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2007). Specifically, the VCAA and its implementing regulations contain provisions relating to VA's duties to notify and to assist a claimant in developing a claim. The United States Court of Appeals for Veterans Claims (Court) has held that reversal or revision of prior decisions due to CUE is not a claim, but a collateral attack on a prior decision. Thus, one requesting such reversal or revision is not a claimant within the meaning of the VCAA and, consequently, the notice and development provisions of the VCAA do not apply in CUE adjudications. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Analysis Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-20.1411. The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b). Motions which fail to comply with these requirements shall be dismissed without prejudice to refiling. In the implementing regulation, CUE is defined as a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels a 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). A determination of CUE in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1). To warrant revision of a Board decision on the grounds of CUE, 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 CUE. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE are: (1) A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) the Secretary's failure to fulfill the duty to assist; (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). 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). In other cases prior to promulgation of this regulation, the Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior...decision." Russell v. Principi, 3 Vet. App. 310, 313 (1992). Subsequently developed evidence may not be considered in determining whether error existed in a prior decision. Porter v. Brown, 5 Vet. App. 233 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 243 (1991). Moreover, the error must be one that would have manifestly changed the outcome at the time it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a 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 results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) does not apply to a Board decision on a motion to revise a Board decision to CUE. 38 C.F.R. § 20.1411(a). The moving party and his representative assert that the Board erred in failing to adequately consider the medical records from the VA Medical Center in Richmond, Virginia, Union Memorial Hospital, and the University of Virginia Hospital indicating treatment for a back disorder. The Board notes that review of the 1999 decision included consideration of various private and VA medical records between 1990 and 1997, showing the moving party was treated on several occasions for complaints of low back pain and was diagnosed with minimal degenerative disc disease of the L5 - S1 level. Specific reference was made to a September 1990 medical report showing that the moving party received treatment for sclerosis at the L5 - S1 level and chronic back strain and that he had been involved in a motor vehicle accident in May 1990. Two private physicians' statements, dated in September 1990 and October 1990, contained the advisory comment that the moving party be excused from active duty in the Reserves and from performing tasks including lifting due to back symptoms. The Board notes that the medical records from the moving party's several months of active duty for training do not show any treatment for the back complaints. While some post service medical reports over a decade later noted that he reported onset of chronic back pain in service, there is no indication from any qualified health care professional that any current low back problem was related with the moving party's several months of active duty in 1980. The Board observes that the moving party and his representative have failed to state how any alleged error in the Board's adjudication of the appeal would have manifestly changed the outcome when it was made. As noted above, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403(c). It is critical to note that at the time of the Board decision, there was no competent medical opinion of record relating any back disability at that time to the moving party's several months of active service during his active duty for training in 1980. Accordingly, in view of the fact that the moving party has failed to comply with 38 C.F.R. § 20.1404(b) with respect to the allegation of CUE in the September 1999 Board decision, the claim must be dismissed. ORDER The motion for revision or reversal of the September 1999 Board decision, on the grounds of CUE, is dismissed without prejudice to refiling. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs