Citation Nr: 0811115 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 07-34 668A ) DATE ) ) THE ISSUE Whether clear and unmistakable error (CUE) exists in an October 27, 1986 Board decision denying service connection for an acquired psychiatric disorder. [The issues of entitlement to an effective date prior to March 16, 2005 for the grant of service connection for major depressive disorder; entitlement to an effective date prior to March 16, 2005 for the grant of a total disability evaluation based upon individual unemployability due to service-connected disability; and entitlement to an effective date prior to March 16, 2005 for the grant of Dependents' Educational Assistance under Chapter 35 of Title 38 of the United States Code are addressed are addressed in a separate decision.] REPRESENTATION Moving party represented by: Lawrence D. Levin, Attorney ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran, who is the moving party in this action, served on active duty from December 1950 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) following a motion from the veteran's attorney received by the Board in December 2007. In this motion, the veteran's attorney alleged specific errors in the October 27, 1986 Board decision. FINDINGS OF FACT 1. In a October 27, 1986 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder. 2. The October 27, 1986 decision by the Board was based on the application of the pertinent statutory and regulatory provisions extant at the time to the correct facts as they were known at the time. CONCLUSION OF LAW The October 27, 1986 Board decision denying entitlement to service connection for an acquired psychiatric disorder does not contain CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board observes that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the moving party's allegations of CUE. The United States Court of Appeals for Veterans Claims (Court) has determined that CUE claims are not conventional appeals. Rather, such claims are requests for revisions of previous decisions. A claimant alleging CUE is not pursuing a claim for benefits. Instead, that claimant is collaterally attacking a final decision. While CUE, when demonstrated, may result in reversal or revision of a final decision on a claim for benefits, it is not by itself a claim for benefits. See Livesay v. Principi, 15 Vet. App. 165 (2001). A final decision by the Board is subject to revision on the grounds of CUE. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged CUE, 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, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). 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. See 38 C.F.R. § 20.1403(a); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 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 that, 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. See 38 C.F.R. § 20.1403(b) and (c); see also Bustos v. West, 179 F.3d 1378. Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the veteran with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not encompass 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). Service connection may be granted for a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002) (in accord with 38 U.S.C.A. § 310, 331 (1986)); 38 C.F.R. § 3.303 (1986). Personality disorders and mental deficiency as such are not diseases or injuries within the meaning of the applicable legislations. 38 C.F.R. § 3.303(c) (1986). If not shown in service, service connection may be granted for certain chronic disorders, including psychoses if shown disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002) (in accord with 38 U.S.C.A. §§ 301, 312, 313, 337 (1986)); 38 C.F.R. §§ 3.307, 3.309 (1986). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (1986). In the present case, the moving party, through his attorney, has alleged several errors in the October 27, 1986 Board decision. In the motion received in December 2007, the attorney asserted that the 1986 Board decision did not address the findings from a November 1981 VA examination report indicating that the veteran's major depressive disorder was connected to his service-connected "[l]upus" and rendered him unemployable. Second, the attorney argued that the notion that the veteran's psychiatric condition was not manifest in service was contradicted both by veteran's testimony in 1984 and the service medical records. Third, the attorney noted that there was testimony that the veteran had received VA psychiatric treatment within one year following service, and the psychiatric disorder accordingly should be considered to have manifested itself while in service. In summary, the attorney asserted that there was CUE in the October 27, 1986 Board decision because the Board did not consider all the necessary and competent medical information. The Board has reviewed the evidence of record at the time of the October 27, 1986 Board decision and will briefly summarize such evidence and the contents of the decision itself. In this regard, the Board notes that the veteran's service medical records are negative for any mental health complaints or symptoms. However, during a VA hospitalization for pulmonary tuberculosis from April 1955 to January 1956, he was noted to present "a psychological problem in the sense of maladjustment, and a sociological problem as well, both of serious proportions." A November 1970 private psychological report includes a description of the veteran's condition as "passive-aggressive personality with some depressive and paranoid features." The report of a May 1980 VA examination similarly contains a diagnosis of passive-aggressive personality disorder with paranoid features. A November 1981 VA examination report contains a diagnosis of anxiety and depression, chronic and severe, secondary to "dissiminted L.E. [(lupus erythmatosus)]". Also, a September 1982 VA examination report contains a diagnosis of a major depressive disorder with an underlying passive-aggressive personality disorder. At the time of the 1986 Board decision, the claims file also included multiple statements from a private doctor (E.W.F., M.D.), beginning in September 1984 and indicating a causal link between the veteran's psychiatric disorder, characterized by depression, anxiety, agitation, and confusion, and the diagnosis of disseminated lupus erythmatosus "which appears to have begun during his military service." In the decision itself, the Board described the service medical records, post-service treatment records beginning in April 1955, hearing testimony, favorable medical opinions from the veteran's private doctor, and VA examination reports (including the report from November 1981). The Board concluded that the veteran's service medical records were negative for this disability, while acknowledging that the veteran was noted to be nervous, impulsive, and maladjusted shortly after service. The Board also found no basis for secondary service connection, noting that the evidence of record did not establish that there was "a persuasive causal connection" between the claimed psychiatric disorder and the service-connected discoid lupus erythmatosus. Rather, the Board noted a causal connection between the claimed psychiatric disorder and systemic (or disseminated) lupus erythmatosus, for which service connection was not in effect. In asserting CUE in the October 27, 1986 Board decision, the attorney's arguments largely constitute a disagreement with how the Board considered and weighed the evidence of record at the time of the decision, particularly given that the Board in 1986 reviewed and cited to all records described by the attorney. This line of argument, however, does not present a basis for finding CUE in the October 27, 1986 decision, as clearly indicated in 38 C.F.R. § 20.1403(d). See Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("to claim CUE on the basis that previous adjudicators had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE"). Rather, a finding of CUE requires that either the correct facts, as they were known at the time, were not before the Board, or that the statutory and regulatory provisions extant at the time were incorrectly applied. Upon reviewing the October 1986 Board decision, there is no indication that either the correct facts were not before the Board or that the extant and relevant statutory and regulatory provisions were incorrectly applied, and the attorney has not made this specific allegation. Rather, the October 1986 Board decision reflects a review of the claims file and the relevant evidence therein, with application of the then-extant laws and regulations addressing service connection claims, including presumptive and secondary service connection (38 U.S.C. §§ 301, 310, 312, 313, 331, 337; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310(a)). The Board does not necessarily disagree that reasonable minds could have differed as to whether the veteran's was incurred in or aggravated by service or incurred as secondary to a service-connected disability. However, this is not the applicable test for CUE. Mere disagreement with the Board's evidentiary conclusions cannot amount to a valid CUE claim. When reasonable minds can differ, it cannot be said there was an undebatable error, which is the kind of error required for a finding of CUE. See Damrel, 6 Vet. App. at 245. Similarly, the Board does not dismiss outright the possibility that additional evidentiary development prior to the 1986 Board decision, such as a more thorough VA psychiatric examination, might have resulted in findings leading to a different disposition in that decision. Again, however, the Board would point out that a failure to fulfill VA's duty to assist the veteran with the development of facts relevant to his claim is specifically listed in 38 C.F.R. § 20.1403(d) as an instance which would not constitute CUE. In summary, the October 27, 1986 Board decision denying service connection for an acquired psychiatric disorder was based on the application of the pertinent statutory and regulatory provisions extant at the time to the correct facts as they were known at the time. As such, the Board finds that the October 27, 1986 decision does not contain CUE. The motion is accordingly denied. ORDER The motion to revise or reverse the October 27, 1986 Board decision on the basis of clear and unmistakable error is denied. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs