Citation Nr: 1209761 Decision Date: 03/15/12 Archive Date: 03/28/12 DOCKET NO. 09-30 261 ) DATE ) ) THE ISSUES 1. Whether a September 1989 decision of the Board of Veterans' Appeals, which denied a claim for entitlement to service connection for neurogenic bladder, should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Whether a June 1998 decision of the Board of Veterans' Appeals, which granted a claim for entitlement to an earlier effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet and special monthly compensation (SMC) based on the loss of the use of feet, should be revised or reversed on the grounds of CUE. 3. Whether a February 2003 decision of the Board of Veterans' Appeals, which denied a claim for entitlement to higher SMC at the ("o-rate"), based on the anatomical loss or loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m), should be revised or reversed on the grounds of CUE. ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The moving party, the Veteran, served on active duty from February 1971 to December 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) from January 2008, November 2008, February 2009, April 2009, May 2009, and April 2010 motions for revision or reversal of Board decisions dated September 18, 1989; June 19, 1998; and February 5, 2003, on the basis of CUE. See 38 U.S.C.A. § 7111(West 2002); 38 C.F.R. §§ 20.1400, et seq. (2011). The Board observes that the Veteran appears to have also asserted that CUE exists in various rating decisions to include those dated in June 1981, January 1984, February 1996, and July 1998. However, these claims have not been addressed by the RO in the first instance. Accordingly, they are REFERRED to the RO. FINDINGS OF FACT 1. In a final decision dated September 18, 1989, the Board denied the Veteran's claim for entitlement to service connection for neurogenic bladder. 2. At the time of the September 18, 1989 decision, the Board correctly applied the statutory and regulatory provisions existing at the time such that the outcome of the claim would not have been manifestly different but for the error. 3. In a final decision dated June 19, 1998, the Board granted a claim for entitlement to an earlier effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet and SMC based on the loss of the use of feet. 4. At the time of the June 19, 1998 decision, the Board correctly applied the statutory and regulatory provisions existing at the time such that the outcome of the claim would not have been manifestly different but for the error. 5. The February 5, 2003 Board decision that denied a claim for entitlement to higher SMC at the ("o-rate"), based on the anatomical loss or loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m) was vacated by the Court of Appeals for Veteran's Claims in an April 2006 Judgment. CONCLUSIONS OF LAW 1. Clear and unmistakable error in the Board's September 18, 1989 decision, which denied a claim for entitlement to service connection for neurogenic bladder, has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2011). 2. Clear and unmistakable error in the Board's June 19, 1998 decision, which granted a claim for entitlement to an earlier effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet and SMC based on the loss of the use of feet, has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2011). 3. Clear and unmistakable error in the Board's February 5, 2003 decision, which denied a claim for entitlement to higher SMC at the ("o-rate"), based on the anatomical loss or loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m), has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. However, these requirements are not applicable to requests for revision of a final decision based on CUE because the matter involves an inquiry based upon the evidence of record at the time of the decision rather than the development of new evidence. Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); VAOPGCPREC 12-2001 at para. 7 (July 6, 2001) (VA does not have "a duty to develop" a CUE case because "there is nothing further that could be developed"); see also Livesay v. Principi, 14 Vet. App. 324, 326 (2001). LAW AND ANALYSIS A decision by the Board is subject to revision on the grounds of CUE. 38 U.S.C.A. § 7111(a) (West 2002). VA regulations define what constitutes CUE and what does not, and they provide in pertinent part: § 20.1403 Rule 1403. What constitutes [CUE]; what does not. (a) General. [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. (b) Record to be reviewed. (1) General. Review for [CUE] 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 [CUE]. To warrant revision of a Board decision on the grounds of [CUE], there must have been 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 [CUE]. (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. [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. § 20.1404 Rule 1404. Filing and pleading requirements; withdrawal. (a) A motion for revision of a prior Board 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 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 these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404(a). (b) Specific allegations required. The motion 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 the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refilling under this subpart. 38 C.F.R. §§ 20.1403, 20.1404(b) (2011). The definition of CUE was based on prior rulings of the United States Court of Appeals for Veterans Claims (the Court). More specifically, it was observed that Congress intended that the VA adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance from years of Court decisions regarding CUE. The Board notes that the Court has consistently stressed the rigorous nature of the concept of CUE. "[CUE] 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). "[CUE] requires that error, otherwise prejudicial, . . . must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (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 v. Principi, 3 Vet. App. 310, 313-4 (1992). "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). September 1989 decision In an April 2010 letter to a Senator that was referred to the Board, the Veteran alleged CUE in a September 18, 1989 Board decision that denied his claim for service connection for neurogenic bladder. He stated that "VA's reasons for denying my claim are completely bogus, not founded on fact or law, and therefore constitute a clear and unmistakable error." The Veteran then listed the laws that he believed VA violated and the facts as he saw them. Specifically, under the heading "laws the VA violated under CUE number 2," the Veteran indicated that VA violated 38 C.F.R. §§ 3.327, 4.1, 4.3, 4.6, 4.7, 4.10, 4.23, 4.40, 4.41; and 38 U.S.C.A. § 1110. Under the heading "facts that support CUE #2," the Veteran appeared to argue that VA violated 38 C.F.R. § 3.327 by requesting additional VA examinations after a June 23, 1984 examination. He stated, in pertinent part June 23, 1984, diagnosis by Dr. Searcy, sates under Diagnosis: "1. Multiple sclerosis, see neurology exam. 2. Visual problems, see eye exam. 3. Neurogenic bladder and loss of libido, secondary to number one." And the VA doctor, Dr. Pullen certified this report as adequate for rating. The VA concealed this information, and in 2010 I found this info, the VA doctor certified neurogenic bladder and loss of libido secondary to multiple sclerosis as adequate for rating. The VA did not rate me after requesting this exam and any future exams violates 38 C.F.R. § 3.327(b)(2) for multiple sclerosis, visual problems, and neurogenic bladder. He then went on to paraphrase 38 C.F.R. § 3.327(b)(2). Beginning with the Veteran's argument that VA concealed the June 23, 1984 VA examination, the Board notes that the Board did consider this examination in the September 1989 decision. The Board referred to two portions of a June 1986 examination; the neuropsychiatric and the physical examination. In particular, the Board stated (p. 4) In June 1986, a VA examination was conducted for compensation purposes. The neuropsychiatric diagnosis was multiple sclerosis. It was noted in the physical examination report that there was an obvious decrease in proper function of the bladder, but it apparently was not too severe. Neurogenic bladder was noted as a diagnosis. A review of the claims file reflects a VA examination report entitled neuropsychiatric rating examination dated June 17, 1986 which contains a neuropsychiatric diagnosis of multiple sclerosis. The record also contains a VA examination report entitled report of medical examination for disability evaluation dated June 17, 1986. This report contained a diagnosis of neurogenic bladder. On page four of that examination report is the signature of Ben Searcy, M.D. signed June 23, 1984. There is also a stamp of Dr. W.G. Pullen, Coordinator of the Compensation and Pension Section, indicating that the report was adequate for rating. Thus, the report that the Veteran is referring to (June 23, 1984) is the same as the June 17, 1986 record that was considered by the Board in the September 1989 decision. Therefore, the Veteran's argument that VA somehow concealed or that the correct facts were not before the Board at the time of the decision is not CUE. 38 C.F.R. § 20.1403(a). The Veteran contends that because Dr. W.G. Pullen indicated that the June 1986 VA examination was adequate for rating, VA violated 38 C.F.R. § 3.327(b)(2) by scheduling additional VA examinations. He stated May 1, 1986, VARO's request for physical examination for: "Appeal case-Please schedule specialist exam by other than Dr. Ronald Boyle. Eye exam is also requested. Exam of the kidneys is also requested." August 11, 1986, letter from the VA Regional Office, to the VA medical center, states: "VA examination of June 17, 1986, is being returned for additional information. The veteran was advised to see a urologist. General examiner stated as diagnosis of neurogenic bladder with loss of libido secondary to multiple sclerosis. Please furnish findings to support a current diagnosis of neurogenic bladder and loss of libido." The VA just violated 38 C.F.R. § 3.327. The Veteran also appears to contend that because additional VA records were created after the June 1986 VA examination, the Board committed CUE when it considered them instead of granting his claim based on the June 1986 diagnosis of neurogenic bladder. The Veteran stated June 7, 1988, the VARO answers the Board of Veterans Appeals remand. Service connection for an eye disability. "VA neurogenic exam reveals the veteran does have pale optic nerve heads bilaterally with the upper outer quadrant of both nerve heads being pale." "Neurogenic bladder (not found last exam)". The VA violated 38 C.F.R. §§ 3.327, 4.1, 4.3, 4.6, 4.7, 4.10, 4.23, 4.41; and 38 U.S.C.A. § 1110. September 18, 1989, findings and decision, from Board of Veterans Appeals ................................... Under the heading DISCUSSION and EVALUATION it states: "in fact, a recent cystometrogram was negative for findings consistent with a neurogenic bladder. Inasmuch as a neurogenic bladder is not currently demonstrated, a basis upon which to grant service connection for the claimed disability does not exist. " SEE June 23, 1984 VA diagnosis of neurogenic bladder secondary to multiple sclerosis that was certified as adequate for rating above. The Board observes that the provisions of 38 C.F.R. § 3.327(a), (b) apply to disabilities that are already service-connected. In relevant part, 38 C.F.R. § 3.327(a) provides that "reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required....if evidence indicates there has been a material change in a disability or that the current rating may be incorrect." Thus, this regulation pertains to disabilities that are already subject to service-connection. However, when VA requested additional examinations in 1986, the Veteran was not service connected for neurogenic bladder. VA was not in error by requesting additional examinations. Accordingly, the Board did not incorrectly apply 38 C.F.R. § 3.327 and there was no CUE with the Board considering evidence dated after the June 17, 1984 VA examination reports in the September 1989 decision. 38 C.F.R. § 20.1403(a). The Veteran also appears to argue that there was enough evidence of record upon which to grant his claim. He noted a March 1985 diagnosis of multiple sclerosis with neurogenic bladder, October 1986 diagnosis of neurogenic bladder, December 1986 note of MS mild neurogenic bladder will start minipress, January 1987 diagnosis of MS mild neurogenic bladder, April and May 1987 VA treatment records indicating that he was treated for his neurogenic bladder, and September 1991 finding of problems with bladder functions. In his April 2009 motion, the Veteran added a June 1983 finding of residual urine determination of two ounces, June 1983 VA examination, April 1988 VA examination, and November 2007 Independent Medical Evaluation of Dr. Bash as evidence which supports his argument. The Board observes that the Board considered all referenced records in the September 1989 decision except for the September 1991 finding and Dr. Bash's November 2007 opinion, which were not created or of record at the time of the September 1989 decision and therefore cannot be a basis for CUE. 38 C.F.R. § 20.1403(b). The Veteran also alleged CUE with the Board's finding of fact on p. 9 of the decision, "the presence of a neurogenic bladder has not been demonstrated." The Board observes that the Veteran appears to try to show CUE by referencing the above findings of neurogenic bladder in the record. However, there is additional evidence that the Veteran did not cite that the Board considered when weighing the evidence. Specifically, (p.4-5, 8) In September 1986, the appellant was admitted to a VA hospital. He had a previous diagnosis of multiple sclerosis with secondary neurogenic bladder. A cystometrogram disclosed no evidence of detrusor instability with involuntary contractures. He was found to have decreased detrusor pressure. He was found to have a normal flow rate and flow time. There was an elevated residual volume of approximately 90 cubic centimeters. It was commented that the veteran did not exhibit detrusor instability associated with his multiple sclerosis. The possibility of an outlet obstruction was raised. The diagnosis was depressed detrusor function. ........................................ In this case, the evidence reflects that service connection has been established for multiple sclerosis, and that "urinary problems" have been included as part of the service-connected disability. However, in order to warrant a grant of service connection, there is required a combination of manifestations sufficient to identify a chronic disease entity. Although the veteran may experience occasional "urinary problems," a neurogenic bladder has not been objectively demonstrated. In fact, a recent cystometrogram was negative for findings consistent with a neurogenic bladder. Inasmuch as a neurogenic bladder is not currently demonstrated, a basis upon which to grant service connection for the claimed disability does not exist. In summary, the Board considered all of the evidence of record and provided reasons and bases for its decision to conclude that a neurogenic bladder was not demonstrated at the time of the September 1989 decision. The Veteran appears to be asking for a reevaluation of the evidence, which is not a basis for CUE. 38 C.F.R. § 20.1403(d)(3). For the reasons stated above, the Board concludes that the September 18, 1989, decision denying a claim for entitlement to service connection for neurogenic bladder was consistent with and supported by the evidence then of record, as well as the law that was in effect at that time and VA's interpretation of those laws. The record does not reflect that an error, had it not been made, would have manifestly changed the outcome when it was made, and it is not absolutely clear that a different result would have ensued. Therefore, the benefit sought by the motion for revision or reversal based on CUE must be denied. June 1998 decision In a November 2008 motion, the Veteran alleged CUE in the June 19, 1998 Board decision that granted a claim for entitlement to an earlier effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet and SMC based on the loss of the use of feet. The motion was addressed to the RO and the Veteran stated, "[t]en years and five months have passed and you have failed to fully comply with the BVA decision dated June 19, 1998." The Veteran contended that he was entitled to special monthly compensation. Specifically, L-1 Entitled special monthly compensation under 38 U.S.C.A. § 1114, subsection (l) and 38 C.F.R. § 3.350(b) on account of loss of use of both feet from April 8, 1993. P-1 Entitled special monthly compensation under 38 U.S.C.A. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(3) at the rate equal to subsection L&M on account of loss of use of both feet with additional disability(ies), weakness right upper extremity, weakness, left upper extremity, cervical fusion, bowel incontinence, urinary incontinence, spondylosis, lumbar spine, major depression and duodenal ulcers independently ratable at 50 percent or more from April 8, 1993. In a May 2009 motion, he alleged that he "never got the retroactive special monthly compensation pay under L-1 for which I am entitled special monthly compensation under 38 U.S.C.A. § 1114, subsection (l) and 38 C.F.R. § 3.350(b) on account of loss of use of both feet from April 8, 1993." The Board observes that these are not matters subject to CUE. Moreover, a July 1998 rating decision notes that the Veteran was in receipt of the L-1 rating on account of loss of use of both feet from April 8, 1993 and the P-1 rating under 38 U.S.C.A. § 1114(p) and 38 C.F.R. § 3.350(b) at the rate equal to subsection L&M from April 8, 1993. A letter informing him of the amount of retroactive benefits that he was awarded beginning May 1, 1993 was sent to him by VA in July 1998. In July 2009, the RO provided him with a letter informing him that his claim for CUE was not valid and noted that he has been paid at the L-1 and P-1 rate from April 8, 1993 and was awarded 100 percent from April 8, 1993, which included Diagnostic Code 5110, loss of use of both lower extremities. Thus, there is no CUE as the June 1998 Board decision awarded, and the July 1998 rating decision effectuated, the l rate and 38 C.F.R. § 3.350(b) on account of loss of use of both feet and the p rate and 38 C.F.R. § 3.350(f)(3) at the rate equal to subsection L&M, all from April 8, 1993. Also in May 2009, the Veteran alleged that he was entitled to the special allowance for aid and attendance provided by 38 U.S.C.A. § 1114(r). The Veteran then listed 19 "legal or factual basis for such allegations." However, the Board observes that entitlement to 38 U.S.C.A. § 1114(r) was not on appeal in the June 19, 1998 decision. The only issue was entitlement to an earlier effective date for the grant of the 100 percent rating for loss of use of the feet and SMC based on the loss of use of the feet. Accordingly, the Veteran cannot allege CUE with an issue that was not addressed by the Board in the June 19, 1998 decision. In April 2010, the Veteran submitted a motion for CUE with the June 19, 1998 Board decision to his Senator, which was referred to the Board. He stated that This CUE is based on the VA's refusal to obey the law and pay me both special monthly compensation and the basic rate of pay, as per 38 C.F.R. § 3.350 Special monthly compensation ratings (a) instructions. Note: my upper extremities were rated 40% right arm and 30% left arm from November 16, 1990, my lower extremities were rated 40% for the left leg and 40% for my right leg from August 7, 1991, 20% cervical fusion from August 7, 1991, and 10% bowel from November 16, 1990 plus others. I was due 100% basic rate of pay plus special monthly compensation from August 7, 1991 per this rating (my legs alone total 100%), see chart below for combined rating. The Veteran stated that VA violated the following laws: 38 C.F.R. §§ 3.350, 4.3, 4.6, 4.16, 4.23 and M21-1MR, Part IV, subpart ii, Chapter 2, Section H 37. He also stated Result: Assign a 100-percent evaluation for the loss of use of both lower extremities under hyphenated diagnostic code (DC) 8018-5110, and separate evaluations under the appropriate DCs for the involvement of any other body system so that possible entitlement to a higher level of SMC will not be overlooked. He then indicated that November 1990 and August 1991 rating decisions supported his argument. The Board notes that issue of the schedular rating to be assigned the bilateral lower extremities was not on appeal in the June 1998 Board decision. Specifically, the Board found (p. 17-18) The veteran claims he is entitled to an effective date of August 7, 1991, for the award of loss of use of the feet and entitlement to special monthly compensation. He had filed a claim for increased disability ratings for his service-connected disabilities as of this date, and subsequently the RO assigned increased ratings as of this date. However, in the VA Form 1-9 received in September 1992 (following the May 1992 SOC and July 1992 SSOC) he dropped several issues including an increased rating for the left lower extremity. An NOD may be withdrawn at any time in writing before a timely appeal is filed. 38 C.F.R. § 20. 204(a). Furthermore, at November 1992 RO hearing he withdrew all the issues concerning increased disability ratings for multiple sclerosis. Accordingly, the April 1992 rating action denying increased ratings for the manifestations of the service-connected multiple sclerosis became final and is a bar to an earlier effective date for a 100 percent rating (in the absence of clear and unmistakable error within the meaning of 38 C.F.R. § 3.105(a) which is not alleged). Although the Veteran is now alleging CUE, he has not made specific allegations as to errors of fact or law in the Board decision. 38 C.F.R. § 20.1404(b). He merely lists the laws and regulations that he felt the Board did not follow and that he is entitled to a 100 percent rating for his bilateral lower extremities. As reflected above, the Board explained why the schedular rating for the bilateral lower extremities was not on appeal. The Veteran has made no arguments as to why it should have been. Accordingly, CUE has not been demonstrated. With regard to the Veteran's allegation that he is entitled to an effective date of August 7, 1991 for loss of use of the feet and SMC, as referenced above, the Board found that the Veteran withdrew his August 7, 1991 claim in his September 1992 Form 9, barring an earlier effective date and found that the earliest date of the next claim was April 8, 1993. The Board went on to explain (p. 18-20) The earliest date of the next claim was the VA examination on April 8, 1993. As indicated, such an examination may be accepted as an informal claim for increased compensation. Because the veteran, in effect, formally requested an increased disability rating in August 1993 (within one year of the April 8, 1993 examination) the April 1993 VA examination may be considered the date of the claim. Thereafter, the veteran appealed the April 1993 rating denial and this appeal continued until the grant of a 100 percent rating for loss of use of the feet with SMC. As contended, the RO did assign an effective date of August 7, 1991, by rating action of November 1994, for the 40 percent rating for weakness of both lower extremities. However, as noted the appeal stemming from the prior claim received on August 7, 1991, for increased ratings had been withdrawn. Thus, assuming that the assignment of this date was incorrect under the regulation governing effective dates, any possible error favored the veteran. 38 C.F.R. § 3.400(b)(2)(i) (1997); see Williams v. Gober, 10 Vet. App. 447 (1997). Also, under the cited regulation concerning effective dates, an effective date of August 7, 1991, is prohibited because it is much more than one year prior to the date of the informal claim (VA examination) of April 8, 1993. ........................................... At the February 1994 hearing, the veteran requested increased disability rating for the lower extremities and his attorney claimed loss of use of the feet. A May 1994 decision denied increased disability ratings for both lower extremities and an SSOC in November 1993 denied increased rating for all disabilities due to multiple sclerosis. At another hearing in August 1994, he testified that he could still use his feet and was walking. He again requested increased disability rating for both lower extremities. A November 1994 rating decision then increased the rating for both lower extremity disabilities to 40 percent effective August 7, 1991. The RO then erroneously attempted to consider this a full grant of benefits and terminate the appeal. As the veteran contended in his statement of July 1995, it was still possible for him to receive greater benefits for the service-connected multiple sclerosis, by being awarded SMC. A subsequent rating action in February 1996, granted loss of use of both feet under DC 5110, which included SMC, from July 26, 1995. Based on the foregoing, the claim from April 8, 1993 was ongoing and is established as the earliest date for the current claim on the basis of the record. ......................................... The RO erroneously made the effective date for the award of the 40 percent rating for weakness of the lower extremities back to August 7, 1991. Under the above analysis, and the effective date provisions under 38 C.F.R. § 3.400, an effective date up to one year prior to the date of claim of April 8, 1993 is possible if it was factually ascertainable that an increase in disability had occurred. However, the first clinical evidence describing a foot drop, was not until the April 8, 1993 examination. Evidence of a foot drop is necessary for establishing loss of use of the feet. Indeed the veteran had continued to work as late as February 1991. Therefore, it is not factually ascertainable that an increase in disability had occurred prior to the claim of April 8, 1993. Accordingly, the proper effective date of loss of use of the feet and SMC for loss of use of the feet is April 8, 1993. Once again, the Board thoroughly explained its findings as to why the Veteran was not entitled to an earlier effective date of August 7, 1991. The Veteran has not made specific allegations as to errors of fact or law in the Board decision. 38 C.F.R. § 20.1404(b). He merely lists the laws and regulations that he felt the Board did not follow and that he is entitled to an earlier effective date. Accordingly, CUE has not been demonstrated. For the reasons stated above, the Board concludes that the June 19, 1998, decision that granted an effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet with SMC was consistent with and supported by the evidence then of record, as well as the law that was in effect at that time and VA's interpretation of those laws. The record does not reflect that an error, had it not been made, would have manifestly changed the outcome when it was made, and it is not absolutely clear that a different result would have ensued. Therefore, the benefit sought by the motion for revision or reversal based on CUE must be denied. February 2003 decision In January 2008 and February 2009, VA received correspondence from the Veteran indicating that he wished to file a motion for CUE with a February 5, 2003 Board decision. The Board finds that the Veteran filed a motion for CUE with a decision that was not final. See 38 C.F.R. §§ 20.1400(a), (b)(1); 20.1401(a). In the February 5, 2003 decision, the Board denied a claim for entitlement to higher SMC at the ("o-rate"), based on the anatomical loss or loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m). The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (the Court) and in a March 2006 Memorandum Decision and accompanying April 2006 Judgment, the Court vacated the February 5, 2003 Board decision. In an October 2006 decision, the Board remanded the claim and then denied it in an April 2008 decision. Thus, because the Court vacated the February 5, 2003 decision, it is not a final decision upon which a moving party can file a claim for CUE. Moreover, the Veteran has not filed a motion for CUE with the April 10, 2008 Board decision that is final. See 38 C.F.R. §§ 20.1404(a), (b). Therefore, the motion is not valid and is denied. ORDER The motion for revision or reversal of September 1989 decision of the Board of Veterans' Appeals, which denied a claim for entitlement to service connection for neurogenic bladder, is denied. The motion for revision or reversal of a June 1998 decision of the Board of Veterans' Appeals, which granted a claim for entitlement to an earlier effective date of April 8, 1993 for a 100 percent rating for loss of use of the feet and SMC based on the loss of the use of feet, is denied. The motion for revision or reversal of a February 2003 decision of the Board of Veterans' Appeals, which denied a claim for entitlement to higher SMC at the ("o-rate"), based on the anatomical loss or loss of use of both hands under the provisions of 38 U.S.C.A. § 1114(m) , is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs