Citation Nr: 1327246	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  13-09 065A	)	DATE
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THE ISSUES

Whether there was clear and unmistakable error (CUE) in the Board's February 24, 2012 decision that denied a rating in excess of 10 percent for myofascial back pain syndrome prior to February 21, 2005; and granted a disability rating of 20 percent for myofascial back pain syndrome effective from February 21, 2005, a disability rating of 40 percent for myofascial back pain syndrome effective from February 3, 2011, and separate disability ratings of 10 percent for right and left lower extremity radiculopathy associated with myofascial back pain syndrome, effective from February 3, 2011.


REPRESENTATION

Moving party represented by:  The American Legion


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The moving party served on active duty from February 1980 to February 1984.

This matter comes before the Board of Veterans' Appeals (Board) following the receipt of the moving party's April 2013 motion alleging CUE in a February 24, 2012 Board decision

In addition to the paper claims file, there is a Virtual VA paperless claims file.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue before the Board.


FINDING OF FACT

The moving party has failed to adequately allege CUE in the February 2012 Board decision, the legal or factual bases for any such error, and why the results would have been manifestly different but for any alleged errors.


CONCLUSION OF LAW

The motion alleging CUE in the Board's February 2012 decision lacks legal merit.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403(b), 20.1404 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist veterans in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The VCAA is not applicable to motions for revision of a Board decision on the grounds of CUE.  Livesay v. Principi, 15 Vet. App. 165 (2001).  Review for CUE in a prior Board decision is based on the record that existed when that decision was made.  38 C.F.R. § 20.1403(b) (2012).

Analysis

Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE.  A claim requesting review under this statute may be filed at any time after the underlying decision is made.  Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997.  See 38 C.F.R. § 20.1400.  In this case, the moving party's motion for review or revision was received by the Board in April 2013.

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 Department of Veterans Affairs (VA) file number; and, the date of the Board's 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 the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart.  38 C.F.R. § 20.1404(a).

Additionally, the motion for CUE must set forth clearly and specifically the alleged clear and unmistakable error of law or fact in the Board decision and why the result would have been manifestly different but for the alleged error.  38 C.F.R. § 20.1404(b).

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.  Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error."  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different.  Id. at 44.

The court has established a three-pronged test, each of which must be met before CUE is established: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e. 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)).

In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).

In his April 2013 motion, the moving party requested that the Board's February 2012 decision be vacated.  He enclosed material from the Congressional Research Service (CRS) that described the two ways in which a veteran was entitled to receive a total rating based upon individual unemployability due to service-connected disabilities (TDIU), a page from an unidentified judicial decision, and a page from the Board's February 2012 remand indicating that the evidence reasonably raised the issue of entitlement to a TDIU as an element of the rating claim. 

However, the moving party has made no specific reference to any findings or conclusions in the Board's February 2012 decision, has not alleged any specific errors of fact or law in the decision, and has not explained how the results would have been manifestly different but for any alleged errors.  Rather, he has only continued to submit copies of the CRS information, the page from the unidentified judicial decision, and the February 2012 remand page, that are already in the claims file, and has expressed his general belief that the Board's February 2012 decision should be vacated.

In sum, the moving party has failed to make any specific allegations of error in fact or law in the Board's February 2012 decision, to set forth the legal or factual basis for any such allegations of CUE, and to specify why the result would have been manifestly different but for any alleged error.  In a CUE motion, it is incumbent upon the moving party to set forth clearly and specifically the alleged CUE, and 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 this requirement.  38 C.F.R. § 20.1404(b).  As 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.


ORDER

The motion to reverse or revise the Board's February 24, 2012 decision, that denied a rating in excess of 10 percent for myofascial back pain syndrome prior to February 21, 2005 and granted a disability rating of 20 percent for myofascial back pain syndrome effective from February 21, 2005, a disability rating of 40 percent for myofascial back pain syndrome effective from February 3, 2011, and separate disability ratings of 10 percent for right and left lower extremity radiculopathy associated with myofascial back pain syndrome, effective from February 3, 2011, on the grounds of CUE is dismissed without prejudice to refiling.




                       ____________________________________________
	Mark D. Hindin
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs