Citation Nr: 0813853 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 08-00 233 ) DATE ) ) THE ISSUE Whether an April 28, 1989 decision of the Board of Veterans' Appeals (Board), which denied entitlement to service connection for a back disorder, should be revised or reversed on the basis of clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. In November 2007, the veteran and his representative submitted correspondence which constituted a motion to revise or reverse, on the basis of CUE, an April 28, 1989 Board decision, wherein the Board denied service connection for a back disorder. See 38 U.S.C.A. §§ 5109A and 7111; 38 C.F.R. §§ 20.1400, 20.1403. The Board's policy provides that the issue of whether a prior Board decision involves CUE will be addressed in a decision separate from decisions on other issues. This exception to the general policy that all issues over which the Board has jurisdiction in an individual case will be addressed in a single document is provided since the Board exercises original jurisdiction where reversal or revision of a previous Board decision due to CUE is requested. See 38 U.S.C.A. § 7111(e). FINDINGS OF FACT 1. In an April 28, 1989 decision, the Board denied service connection for a back disorder. 2. The April 28, 1989 Board decision was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. CONCLUSION OF LAW The criteria for revision or reversal of the April 28, 1989 Board decision which denied service connection for a back disorder on the basis of CUE have not been met. 38 U.S.C.A. §§ 5107, 5110, 7105, 7111 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.104, 3.105(a), 20.100, 20.1400, 20.1402, 20.1403 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). This law contemplates VA's notice and duty to assist obligations in the context of claims for benefits. An allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. Thus, the provisions of the VCAA are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165 (2001) (an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."). The Board therefore finds that the provisions of the VCAA, and its implementing regulations, are not applicable to the adjudication of the issue of CUE in the April 28, 1989 Board decision on appeal. The veteran has alleged CUE in an April 28, 1989 Board decision, wherein the Board denied service connection for a back disorder. A decision issued by the Board is final. 38 U.S.C.A. §§ 7103, 7104(a); 38 C.F.R. §§ 20.1100, 20.1104(a)(1). Previous determinations of the Board that are final and binding, including decisions of the degree of disability, will be accepted as correct in the absence of CUE. Where evidence establishes such error, however, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A(a), 7111(a), (c). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice codified at 38 C.F.R. §§ 20.1400-1411. A motion alleging CUE in a prior Board decision 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 different but for the alleged error. 38 C.F.R. § 20.1404(b). CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 of 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome- determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision); Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). It has been held that 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. "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. A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Further, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (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). In light of the foregoing, the veteran must argue that either the correct facts were not considered by the RO or that applicable laws and regulations were not correctly applied in the rating decision at issue. Such a determination must be based on the record and the law that existed at the time of that rating decision.. Eddy v. Brown, 9 Vet. App. 52 (1996). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. In an April 28, 1989 decision, the Board denied service connection for a back disorder on the basis that a back disorder was not demonstrated during service and any current back disorder was unrelated to an incident in service. Thus, a back disorder was not incurred in or aggravated by the veteran's wartime service. The veteran and his representative argue that the provisions of 38 U.S.C.A. § 1154(b) regarding the veteran's combat status were not applied. They point out that the veteran's multiple combat decorations were evidence that an injury occurred during service despite the lack of clinical evidence of an injury. They also cite to supporting medical evidence and assert that an expert medical opinion was not obtained. Initially, the Board notes that to the extent that the veteran disagrees with how VA weighed this evidence, mere disagreement with the weighing of medical evidence does not amount to CUE. See Russell, 3. Vet. App. at 313-14. Concerning the argument that VA's failure to request a medical opinion was CUE, the Board points out that even if true, a failure to fulfill the duty to assist (to obtain additional records or an examination) is not a basis for finding CUE. 38 C.F.R. § 20.1403(d)(2). There is no evidence that the correct fact were not before the Board in April 1989. Therefore, the Board finds that the decision of April 28, 1989, which denied service connection for a back disorder was based on the correct facts as they were known at that time. The Board decision shows that all of the evidence which was of record at that time was considered. Although the veteran clearly disagrees with the conclusions reached by the Board, as noted, an asserted failure to evaluate and interpret the evidence correctly is not CUE. See generally, Eddy v. Brown, 9 Vet. App. 52 (1996). Turning to the argument that the statutory or regulatory provisions extant at the time regarding combat status were incorrectly applied, the Board also finds that the decision by the Board was in accordance with the applicable law and regulations. In order for service connection to be warranted, a current disability was required. The evidence which was of record in April 1989 reflected that the veteran had chronic low back pain; however, there was no underlying disease pathology identified and there was no diagnosed back disease. Therefore, the claim of service connection was properly denied on the basis that a back disorder was not incurred or aggravated by service under 38 U.S.C. § 310. Regarding the contention that the claim should have been granted pursuant to 38 U.S.C. § 1154(b), the Board notes that this section provides that in the case of any veteran who engaged in combat with the enemy, VA shall accept satisfactory lay evidence as sufficient proof of service incurrence of a disability even if there is no official record of such incurrence. The Board notes that it is it is unclear whether or not the Board considered that provision when adjudicating the claim in April 1989. Significantly, however, even if the Board did not consider that provision, that failure would have been harmless error as the allowance of service connection was precluded due to the fact that the veteran did not have a current disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). For veterans, disability compensation under 38 U.S.C. 310 required disability resulting from injury or disease contracted in line of duty, which is also the current standard. Thus, in order for a veteran to qualify for compensation, the veteran had to establish the existence of disability and that a disability had resulted from a disease or injury that occurred in the line of duty. Without a currently diagnosed disability, the claim of service connection would fail. Evidence of a diagnosed back disorder was not of record as of the April 1989 decision. At that time, the records included a September 1988 VA neurosurgical opinion which noted that the veteran had chronic low back pain which was in large measure related to an inservice back injury. However, this medical record, as noted, did not diagnose a current underlying back disorder which caused the back pain. The United States Court of Appeals for Veterans Claims (Court) has since held that pain alone without a diagnosed or identifiable underlying malady or condition does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Further, as noted, although the veteran believes that the Board erred in discounting the VA neurosurgical notation and erred in not obtaining another medical opinion, the weight accorded medical evidence is not CUE and the failure to obtain a medical opinion or ask for clarification of that neurosurgical medical notation is a failure in the duty to assist, which also is not CUE. Therefore, since there was no diagnosed back disorder, it has not been shown that the decision would have been manifestly different but for failure to consider the law cited by the veteran and his representative. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, there is simply no basis upon which to find CUE in the Board decision. Accordingly, the veteran's motion is denied. ORDER The motion for revision of the April 28, 1989 Board decision on the basis of CUE is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs