Citation Nr: 1320758	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  10-32 735	)	DATE
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THE ISSUE

Whether the June 3, 2005 Board of Veterans' Appeals  (Board) decision should be revised or reversed due to clear and unmistakable error (CUE) in dismissing an appeal of the Regional Office denial of entitlement to service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 


(The Board will issue a action with respect to the following issues:  

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disorder, claimed as retinopathy; 

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression; 

3.  Entitlement to service connection for arthritis; 

4.  Entitlement to service connection for bone disease; 

5.  Entitlement to service connection for a disorder manifested by muscle cramps;  

6.  Entitlement to VA compensation for the residuals of a neck injury, under 38 U.S.C.A. § 1151; 

7.  Entitlement to service connection for an orthopedic disorder, claimed as subluxation of a joint; 

8.  Entitlement to service connection for a back disorder; 

9.  Entitlement to service connection for defective vision; 

10. Entitlement to service connection for a lung disorder; 

11. Entitlement to service connection for heart disease; 

12. Entitlement to service connection for hypertension; 

13. Entitlement to service connection for orthostatic hypotension; 

14. Entitlement to service connection for a gastrointestinal disorder, claimed as constipation; 

15. Entitlement to service connection for a sleep disorder, claimed as insomnia; 

16. Entitlement to service connection for a disorder manifested by impaired sex drive; 

17. Entitlement to service connection for a genitourinary disorder, claimed as anuria and uremia; 

18. Entitlement to service connection for the residuals of Agent Orange exposure; 

19. Entitlement to service connection for nerve damage; 

20. Entitlement to service connection for a psychiatric disorder, manifested by suicidal ideation; 

21. Entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151;  

22. Entitlement to VA compensation under 38 U.S.C.A. § 1151 for depression; 

23. Entitlement to VA compensation under 38 U.S.C.A. § 1151 for hypotension; 

24. Entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person; and 

25. Entitlement to a TDIU.)

ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The moving party served on active duty from December 1968 to July 1970. He is currently in receipt of a 100 percent combined disability evaluation for various service-connected disorders, effective September 2005. 

This matter is before the Board in response to a motion for revision of a June 3, 2005 decision, in which the Board dismissed the moving party's claims of service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 

In December 2005, the moving party stated that the Board's June 3, 2005 dismissal of his claims had been the product of CUE and that the dismissal should be revised or reversed.  38 U.S.C.A. § 7111.  Essentially, the moving party argued that in May 2005, when he directed VA to dismiss his claims, he had not been lucid and had been unaware of what he was doing.  Therefore, he maintained that the appeals of his various issues should be restored to their status prior to the June 3, 2005 dismissal.  

In September 2010, the Board notified the moving party that it had received his motion and granted him 30 days from the date of the letter to file a relevant response, including a request to review the claims file prior to filing a response.  

Later in September 2010, the moving party replied that in June 2005, he had not designated the American Legion to represent him before VA but had designated the VA Hispanic VA organization to represent him.  He further stated that VA had not contacted his new representative, and that the failure to contact his new representative was the primary basis for his charge of discrimination.  



FINDINGS OF FACT

1.  On June 3, 2005, at the request of the moving party and his then-representative, the Board dismissed the moving party's appeal with respect to the issues of service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 

2.  The moving party has not established an error of fact in the Board's June 3, 2005 decision, that compels the conclusion that the Board committed CUE when it dismissed the issues of service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 


CONCLUSIONS OF LAW

1. No error of law in the Board's June 3, 2005 decision has been alleged by the moving party. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012).

2.; The criteria have not been met for reversal or revision of the Board's June 3, 2005 decision, which dismissed the issues of service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

Generally, VA has a statutory duty to notify the moving party of the information and evidence necessary to substantiate his claim and to assist him in the development of that claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  However, an allegation of CUE is fundamentally different from any other kind of action in the VA adjudicative process. 

An allegation of CUE is not a "claim," but rather a collateral attack on a final decision.  It involves a legal challenge to a prior Board decision and does not involve acquiring or submitting any additional evidence.  Therefore, VA's statutory duty to assist the moving party in the development of his claim is not applicable in the adjudication of a CUE motion.  38 C.F.R. § 1403(d)(2); see Livesay v. Principi, 15 Vet. App. 165, 178- 79 (2001). 

The Merits of the Moving Party's Motion

Prior to its evaluation of the motion, the Board will discuss the relevant law it is required to apply.  This includes statutes enacted by Congress and published in Title 38 of the United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit, as noted by citations to "Fed. Cir.") and the United States Court of Appeals for moving partys' Claims (Court, as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issues under appellate consideration. Its decision must include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, as well as the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d) (West 2002); 38 C.F.R. § 19.7 (2012); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board has the authority to revise or reverse a prior Board decision on the grounds of CUE.  38 U.S.C.A. § 7111.  The motion for such action may be filed at any time after the underlying decision is rendered.  38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. 

CUE is a very specific and rare kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds cannot 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) ; see Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  The error must be so egregious that had it not been made, it would have manifestly changed the outcome of the decision.  If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed clear and unmistakable. 38 C.F.R. § 20.1403(c); see Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993) . 


There is a three-prong test to determine whether CUE is present in a prior determination:

(1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at that time were incorrectly applied;

(2) the error must be undebateable, that is the type which, had it not been made, would have manifestly changed the outcome of the decision; 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.

Russell v. Principi, 3 Vet. App. 310, 313-14   (1992) (en banc).

A claim of CUE is a collateral attack on an otherwise final decision.  Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994).  Because of the nature of the challenge to the decision, there is a presumption of validity which attaches to that final decision.  When such a decision is collaterally attacked, the presumption becomes even stronger.  See Fugo at 44.  Therefore, a moving party who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a moving party who seeks to establish prospective entitlement to VA benefits.  See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).  A disagreement with how the RO evaluated the facts is inadequate to raise a claim of CUE.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  Similarly, the Court has held that the VA's breach of its duty to assist cannot form a basis for a claim of CUE.  See Tetro v. Gober, 14 Vet. App. 100, 109 (2000).  Moreover, opinions from the Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid claim of CUE.  Brewer v. West, 11 Vet. App. 228, 234 (1998). 

If the evidence establishes CUE, the prior decision must be reversed or revised, 38 U.S.C.A. § 7111(a) , and the decision constituting the reversal or revision has the same effect as if the decision had been made on the date of the prior decision.  38 U.S.C.A. § 7111(b). 

A review for CUE is based on the record and the law that existed at the time the decision was made.  38 C.F.R. § 1403(b)(1); Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992).  Subsequently developed evidence may not be considered in determining whether error existed in the prior decision.  Porter v. Brown, 5 Vet. App. 233, 235-36   (1993). 

In March 2002, the RO received the moving party's claims of entitlement to service connection of PTSD, entitlement to TDIU and entitlement to special monthly compensation on the basis of the regular need for the aid and attendance of another person.  

In August 2002, the RO received the moving party's claims of entitlement to an increased rating for service-connected hepatitis C; an increased rating for service-connected membranoproliferative glomerulonephritis; entitlement to service connection for degenerative disc disease of the low back; and entitlement to service connection for the following disorders:  depression, retinopathy, cirrhosis of the liver, and cholecystitis, each claimed as secondary to the moving party's service-connected hepatitis C.  

In October 2003, the RO denied all of the moving party's claims.  The moving party disagreed with those decisions in a November 2003 Notice of Disagreement and the RO issued the moving party a Statement of the Case (SOC) in September 2004.  Those appeals were perfected by the timely submission of the moving party's substantive appeal (VA Form 9) in October 2004. 

In a cover letter, dated May 12, 2005, the moving party's then-representative forwarded to the Board a statement from the moving party which read, "I withdraw all my Appeal Issues.  Please send back my Folder to Cleveland Regional Office."  The statement was signed by the moving party, and the representative set forth the claims file number.  The communications from the moving party and his representative met the criteria then in effect for the withdrawal of all the issues on appeal:  1) They were in writing; 2) They identified the name of the Veteran and his VA claim file number; 3) They noted that the appeal was withdrawn in its entirety; and 4) They properly filed the claim with the Board.  38 C.F.R. § 20. 204 (2004).  Thus, there were no procedural irregularities which could have risen to the level of CUE.  

In light of the moving party's withdrawal of his appeal, there remained no allegations of error of fact or law for appellate consideration.  In essence, a "case or controversy" involving a pending adverse determination that the moving party has taken exception to no longer existed.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) [quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)].  Therefore, the Board was without jurisdiction to review the appeal.  Accordingly, the Board dismissed, without prejudice, all of the issues on appeal.  

The moving party argues that in May 2005, when he withdrew all of the issues on appeal, he was not in his right state of mind due to the many problems caused by his service-connected disabilities.  In effect, he states that he was unaware of what he was doing and the consequences of his actions.  Therefore, he maintains that the request to withdraw the appeal was a nullity and should not have been given any validity.

The moving party has pointed to no law whatsoever upon which to base his assertion of clear and unmistakable error, and the Board has been unable to glean such authority. The Board is not under any statutory, regulatory, or precedential obligation to ascertain whether a claimant, in particular one represented by a Veterans Service Organization, is aware of the effect of his actions. 

Moreover, there is otherwise insufficient evidence to conclude under the clear and unmistakable standard set forth above that the moving party was unaware of the consequences of his action, up to and including the date of receipt of his withdrawal of the claims. 

The evidence shows unquestionably that the moving party was mentally impaired, however all of his submissions indicate that he was cognizant of his actions. Relevant evidence on file on June 3, 2005 consisted of records reflecting the moving party's treatment from March 2000 through September 2004, an April 2000 document (VA Form 21-22) in which the moving party appointed a Veterans Service Organization to represent him before VA, records reflecting the moving party's psychiatric treatment by A. C. N., M.D. from November 2001 to March 2002, the report of a July 2003 VA psychiatric examination, and the report of a July 2003 examination to determine whether the moving party was housebound or in need of the regular aid and attendance of another person.  Those records show that the moving party had a nonservice-connected psychiatric disorder, primarily diagnosed as depression, schizophrenia, and PTSD.  The report of the July 2003 VA examinations shows that in addition, to his service-connected hepatitis C and cirrhosis of the liver, he was legally blind and had hypertension.  

During the July 2003 examination to determine whether the moving party was housebound or in need of the regular aid and attendance of another person, it was noted that he was unable to manage his assets and had a care provider who managed his benefits for him.  It was also noted that due to being legally blind, he was unable to protect himself from the hazards and dangers of his daily environment.  He reportedly relied very heavily on his care provider for assistance in taking his medication and attending his appointments.  

However, although the moving party reported periods of depression and was found, at times, to be unstable (e.g., VA treatment records in January and March 2004), records reflecting his VA treatment from March 2000 through September 2004, as well as those from Dr. N., show that the moving party was alert and oriented and that he was cognitively intact.  Dr. N., the moving party's long-term treatment psychiatrist found the moving party to be moderately depressed and moderately anxious.  Moreover, the VA treatment records concurred with Dr. N. that the moving party's thought processes were, generally, organized, relevant, goal-directed, and logical, and that his insight and judgment were good.  Despite his depressed feelings, he was not found to be an acute danger to himself or others.  In addition, there was no evidence that he was incompetent or that he had ever been adjudicated incompetent by any court or by VA.  

Finally, the Veteran  has submitted no evidence, and the Board has found none on file, to support his allegation that in June 2005, he was discriminated against by any employee of VA or by the Veterans Service organization who represented him before VA.  

In light of the foregoing discussion, the Board finds nothing which was on file on June 3, 2005 which clearly and unmistakably rendered the moving party's May 2005 dismissal request a nullity.  The correct facts, as they were known at the time, were before the Board and the statutory or regulatory provisions extant at that time were correctly applied.  To conclude otherwise would require the Board to reevaluate and reweigh the evidence, a practice which cannot result in a finding of CUE.  Luallen.  

ORDER

The motion to reverse or revise the Board's June 3, 2005 decision is denied. 


                       ____________________________________________
	VITO A. CLEMENTI
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs