Citation Nr: 1041990	
Decision Date: 11/08/10    Archive Date: 11/18/10

DOCKET NO.  09-11 240	)	DATE
	)
	)


THE ISSUE


Whether a December 30, 2008, Board of Veterans' Appeals (Board) 
decision that denied service connection for an acquired 
psychiatric disorder, to include a bipolar disorder and 
schizophrenia; a personality disorder or attention deficit 
disorder; and posttraumatic stress disorder (PTSD) should be 
revised or reversed on the basis of clear and unmistakable error 
(CUE).


REPRESENTATION

Moving party represented by:  Veterans of Foreign Wars of the 
United States


ATTORNEY FOR THE BOARD

K. Neilson, Counsel




INTRODUCTION

The Veteran had active military service from May 1966 to December 
1966.

In a motion received on March 24, 2009, the Veteran asserted CUE 
in a December 30, 2008, Board decision.  In an April 2009 letter 
to the Veteran in response to his motion, the Board assigned a 
docket number and informed the Veteran that it would not consider 
his motion for revision on the basis of CUE until after 120 days 
had elapsed since December 30, 2008, and only if thereafter there 
was no pending appeal of the December 30, 2008, Board decision 
before a court of competent jurisdiction, pursuant to May v. 
Nicholson, 19 Vet. App. 310 (2005) and 38 C.F.R. § 20.1410.  The 
120-day period from December 30, 2008, has expired, and the Board 
has determined that there is no pending appeal of the December 
30, 2008, Board decision before a court of competent 
jurisdiction.  

Further, in another April 2009 letter to the Veteran's 
representative, the Board acknowledged the motion for revision, 
provided the Veteran's representative with a copy of the motion, 
and advised the Veteran's representative that he had 30 days to 
file a relevant response, to include a request to review the 
claims folder prior to filing a further response.  The Board 
informed the Veteran's representative that if no response was 
received within 30 days, the motion for revision would be 
referred for a decision.  No response was received to this 
correspondence.

Accordingly, this matter is currently before the Board on motion 
for revision or reversal on the grounds of CUE in the December 
30, 2008, decision of the Board that denied entitlement to 
service connection for (1) an acquired psychiatric disorder, to 
include a bipolar disorder and schizophrenia; (2) a personality 
disorder or attention deficit disorder; and (3) PTSD.  


FINDINGS OF FACT

1.  The Veteran had active military service from May 1966 to 
December 1966.

2.  The Veteran has failed to identify which of the three issues 
decided in the December 30, 2008, Board decision is the subject 
of his motion for revision on the basis of CUE.  

3.  The Veteran has failed to adequately set forth the alleged 
CUE, or errors of fact or law, in the December 30, 2008, Board 
decision, the legal or factual basis for such allegations, and 
why the result would have been manifestly different but for the 
alleged error.


CONCLUSION OF LAW

Because the threshold pleading requirements for a motion for 
revision of the Board's December 2008 decision based on CUE have 
not been met, the motion must be dismissed without prejudice to 
re-filing.  38 C.F.R. § 20.1404(a), (b) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A final decision issued by the Board may not be revised or 
reversed except upon a finding of CUE.  38 U.S.C.A. § 7111(a) 
(West 2002).  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.  38 C.F.R. § 
20.1403(a) (2010).

If a movant wishes to reasonably raise a claim of CUE, 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, 1381 (Fed. Cir. 1999); Fugo v. Brown, 6 Vet. App. 40 
(1993).  If it is not absolutely clear that a different result 
would have ensued, the error complained of cannot be clear and 
unmistakable.  38 C.F.R. § 20.1403(c).  

Motions for review of prior final Board decisions on the grounds 
of CUE are subject to specific filing and pleading requirements, 
which are set forth in Rule 1401 of the Rules of Practice of the 
Board, found in Part 20 of title 38, Code of Federal Regulations.  
Failure to comply with these requirements results in dismissal of 
the motion without prejudice to re-filing.  See 38 C.F.R. § 
20.1404(a), (b) (2010).

Rule 1404(a) specifies that a motion for revision of a decision 
based on CUE 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 Department of Veterans Affairs 
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.  

In this case, the Veteran's March 2009 motion fails to comply 
with the filing requirements for CUE motions set forth in Rule 
1404(a).  Although the Veteran's motion does not indicate the 
date of the Board decision to which his motion relates, he does 
attach to his motion a copy of a letter from the Board, dated 
December 30, 2008, notifying him that it had made a decision in 
his case.  The Board's December 2008 decision, however, listed 
three issues on appeal: (1) entitlement to service connection for 
an acquired psychiatric disorder, to include a bipolar disorder 
and schizophrenia; (2) entitlement to service connection for a 
personality disorder or attention deficit disorder; and (3) 
entitlement to service connection for PTSD.  The Veteran's motion 
does not specify which one of those three issues is the subject 
of his CUE motion, as is required by Rule 1404(a).  See 38 C.F.R. 
§ 20.1404(a).  

In addition, a motion for revision of a Board decision based on 
CUE must set forth clearly and specifically the alleged clear and 
unmistakable error, 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, 
nonspecific allegations of error, are insufficient to satisfy 
this requirement.  See Caffrey v. Brown, 6 Vet. App. 377, 382 
(1994); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  Other 
examples of situations that are not CUE include a changed 
diagnosis, i.e., a new diagnosis that 'corrects' an earlier 
diagnosis considered in the Board decision; the Secretary's 
failure to fulfill the duty to assist; and, allegations based on 
improper evaluation of evidence, i.e., a disagreement as to how 
the facts were weighed or evaluated.  38 C.F.R. § 20.1403(d)(1-3) 
(2010).  Moreover, 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).

The Veteran's allegations of CUE are as follows: (1) The Board 
committed CUE by failing to mention or consider the Veteran's 
letter to a former United States attorney and (2) the failure to 
make available the transcript of his hearing before the Board was 
CUE.  At the outset, the Board notes that the Veteran's letter to 
a former United States attorney was not contained in the claims 
folder.  A copy of the letter is attached to Veteran's motion and 
is date stamped as received by the Salt Lake City, Utah, VA 
regional office on July 5, 2007.  The Board notes that although 
the letter references an attachment, that attachment has not been 
provided to the Board.  

Review for clear and unmistakable error 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); see Damrel v. 
Brown, 6 Vet. App. 242, 245 (1994) (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).  However, for a 
Board decision issued on or after July 21, 1992, the record that 
existed when that decision was made includes relevant documents 
possessed by VA not later than 90 days before such record was 
transferred to the Board for review in reaching that decision, 
provided that the documents could reasonably be expected to be 
part of the record.  38 C.F.R. § 20.1403(b)(2).  Here, the 
Veteran's claims folder was transferred to the Board in July 
2007.  Thus, because the above-referenced letter was received by 
VA within the 90-day window of when the Veteran's claims folder 
was transferred to the Board for review, it will be considered as 
part of the record before the Board for purposes of review of the 
CUE motion currently before the Board.  See Damrel, supra; 38 
C.F.R. § 20.1403(b)(1), (2).

The Veteran's letter to a former United States attorney indicated 
that he had requested to review his claims folder prior to his 
Board hearing, but had not been allowed to.  He also directed 
attention to a 1979 civil action, which he asserted provides "a 
basis of post Air Force stressors for [his] disability claim."  
A review of the record before the Board at the time of its 
December 2008 decision reveals that the Veteran had previously 
filed a civil suit against Naval personnel in connection with 
alleged incidents that took place while he was a civilian 
employee of the United Stated Navy.  In its December 2008 
decision, the Board considered this information, along with 
medical records discussing the effect of events that took place 
during the Veteran's civilian employment with the Navy, and found 
that because the Veteran's employment with the Navy was civilian 
and there was no evidence that he had active service in the Navy, 
events that took place while employed as a civilian could not be 
considered as a basis for an award of service connection.

The Board has considered the Veteran's arguments but finds that 
the he has failed to cite to specific errors of fact or law in 
the December 2008 Board decision.  Rather, the Veteran has merely 
alleged a due process or duty to assist violation in that his 
claims folder was not made available to him and that a transcript 
of his hearing was unavailable.  Contrary to the Veteran's 
assertion, however, a copy of his hearing transcript was part of 
the claims folder before the Board, as specifically indicated in 
the December 2008 decision.  Further, any implied argument that 
the evidence of record at the time of the December 30, 2008, 
Board decision supported a finding that the Veteran's then-
claimed acquired psychiatric disorder, to include a bipolar 
disorder and schizophrenia; personality disorder or attention 
deficit disorder; or PTSD was service related is no more than a 
disagreement as to how the evidence was weighed and evaluated by 
the Board.

As noted above, under 38 C.F.R. § 20.1404(b), non-specific 
allegations of failure to give due process or non-specific 
allegations of error, such as failure in the duty to assist, are 
insufficient to satisfy the motion requirement.  Such an argument 
of error can not constitute clear and unmistakable error.  See 38 
C.F.R. § 20.1403(d).  Moreover, an allegation that the Board in a 
prior decision improperly weighed the evidence cannot form the 
basis of CUE.  See Damrel, 6 Vet. App. at  246 (1994).  Here, the 
Veteran was provided a notice of appellate rights along with the 
December 30, 2008, Board decision.  When he did not appeal that 
decision, he forfeited his right to contest how the Board had 
weighed the evidence of record.  See 38 U.S.C. §§ 7104(a), 
7105(a), (d)(1) (providing that decisions of the agency of 
original jurisdiction may be appealed to the Board by filing a 
notice of disagreement and substantive appeal).

In conclusion, the Board finds that the requirements for a valid 
claim of CUE have not been satisfied with respect to the December 
30, 2008, Board decision.  Here, the Veteran has not provided 
reasons as to why one would be compelled to reach the conclusion, 
to which reasonable minds could not differ, that but for an 
alleged error the result of the Board's December 30, 2008, 
decision would have been manifestly different.  It is not enough 
to argue that something is CUE; rather, in order to raise a valid 
claim of CUE, the moving party needs to provide specific reasons 
as to why any alleged error was outcome-determinative.  See 
Bustos, 179 F. 3d at 1381.  

Accordingly, in view of the fact that the Veteran has failed to 
comply with 38 C.F.R. § 20.1404(a) and (b) in his attempt to 
challenge the December 30, 2008, Board decision on the basis of 
CUE, the Board has no alternative but to dismiss his March 2009 
motion for revision without prejudice to re-filing.  


ORDER

The motion to revise the December 30, 2008, Board decision with 
respect to the issues of entitlement to service connection for an 
acquired psychiatric disorder, to include a bipolar disorder and 
schizophrenia; a personality disorder or attention deficit 
disorder; and PTSD on the basis of CUE is dismissed without 
prejudice to re-filing.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs