Citation Nr: 1302891 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 12-26 141 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the October 29, 2008, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for posttraumatic stress disorder (PTSD); denied service connection for cardiovascular disease, include coronary artery disease and myocardial infarctions, claimed as secondary to PTSD; denied service connection for malaria and denied an initial compensable rating for scar residuals. REPRESENTATION Moving party represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran in this case served on active duty from August 1950 to April 1952. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The moving party failed to adequately set forth the alleged CUE, or errors, of fact or law in the October 2008 Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged errors. CONCLUSION OF LAW Because the pleading requirements for a motion for revision of a decision based on clear and unmistakable error have not been met, the motion must be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter A motion for reversal or revision of a prior Board decision 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 38 U.S.C.A. § 5103 and § 5103A; and, consequently, the notice and development provisions of the statutes and regulations do not apply in CUE adjudications. Livesay v. Principi, 15 Vet. App. 165 (2001); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Accordingly, no further discussion regarding the duty to notify and assist is required. Analysis A motion for revision of a Board decision based on clear and unmistakable error 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. Nonspecific 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 which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b) (2012). A Board decision is subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. See 38 U.S.C.A. § 7111(a) (West 2002). According to the regulations, clear and unmistakable error 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, clear and unmistakable error is presented when 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. A 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. See 38 C.F.R. § 20.1403(a), (b). The regulations further provide that to warrant revision of a Board decision on the grounds of clear and unmistakable error, 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 clear and unmistakable. See 38 C.F.R. § 20.1403(c). Examples of situations that are not clear and unmistakable error include the following: (1) Changed diagnosis. A new 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; and, (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). Moreover, clear and unmistakable error 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. See 38 C.F.R. § 20.1403(e). The moving party alleges there was CUE in the Board's October 2008 decision. It is asserted that the moving party was awarded several medals that are not listed on his discharge certificate, and the Board, therefore, should have conceded a stressor. It is also argued that the Board failed to consider the provisions of 38 U.S.C.A. § 1154(b) (West 2002). The moving party alleges that the Board incorrectly reported that he left Korea in January 1952, rather than in March 1952. Finally, it is claimed the fact that the service treatment records do not show a heart condition is inconsequential. Neither the moving party nor his representative made any allegations in connection with the claim of service connection for malaria or the increased rating for the scar residuals. In its October 2008 determination, the Board considered the Veteran's service treatment and personnel records, the report of a June 2006 VA examination and private medical records. The Board denied service connection for PTSD on the basis that it was not demonstrated by the evidence of record. It was noted that the June 2006 VA examiner concluded that the Veteran had some PTSD symptoms, but they were not sufficient to support a diagnosis of PTSD or any other psychiatric disorder. There was no other competent evidence of record that suggested the Veteran had PTSD or any other psychiatric disorder that was related to service. The Board specifically noted that whether the Veteran had combat service was not determinative. Since service connection was not established for any psychiatric disability, to include PTSD, service connection for cardiovascular disease on a secondary basis may not be authorized. The Board has carefully reviewed the moving party's CUE motion and finds that it contains no more than general assertions of CUE with respect to the Board's decision of October 2008. The moving party argues, in essence, that his combat service was such that a stressor should have been conceded. As noted above, his claim was denied on the basis that he did not have PTSD, and the question as to whether he had an in-service stressor is not conclusive as to a current diagnosis of a psychiatric disability, to include PTSD. Because the moving party's motion fails to comply with the requirements set forth in 38 C.F.R. § 20.1404(b), the motion is dismissed without prejudice. To the extent the moving party contends that the Board misreported his dates of service in Korea, it is not absolutely clear that a different result would have ensued had the correct dates been reported because the nature and dates of the Veteran's service were not considered the determinative factor in this case. The claim of service connection for PTSD was denied because there was no diagnosis of PTSD. As such, the error complained of in this respect cannot be clear and unmistakable. 38 C.F.R. § 20.1403(b) and (c). The moving party's assertion that the fact that the service treatment records do not show a heart condition is inconsequential is general and non-specific and does not satisfy the requirements for a motion. Neither the moving party nor his representative made any allegations in connection with the claim of service connection for malaria or the increased rating for the scar residuals. Because the motion party's motion does not comply with the requirements set forth in 38 C.F.R. § 20.1404(b), the motion is dismissed without prejudice to refiling. ORDER The motion is dismissed without prejudice. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Only a final decision of the Board of Veterans' Appeals may be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2002); Wilson v. Brown, 5 Vet. App. 103, 108 (1993) ("A claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue.") This dismissal under 38 C.F.R. § 20.1404(b) (2012) is not a final decision of the Board. 38 C.F.R. § 20.1409(b) (2012). This dismissal removes your motion from the Board's docket, but you may refile the motion at a later date if you wish.