Citation Nr: 1333661 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-10 224A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the July 16, 2010 decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to Agent Orange or as secondary to diabetes mellitus. REPRESENTATION Moving party represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. FINDINGS OF FACT 1. In a decision dated July 16, 2010, the Board denied the Veteran's claim for entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to Agent Orange or as secondary to service-connected diabetes mellitus. 2. At the time of the July 16, 2010 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. CONCLUSION OF LAW Clear and unmistakable error in the Board's July 16, 2010 decision, which denied a claim of entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to Agent Orange or as secondary to service-connected disability, has not been established. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 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 duties 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). 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. 38 C.F.R. § 20.1403(a). 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 July 2010 decision. He alleges that the decision was based on erroneous evidence obtained during a Department of Veterans Affairs (VA) examination. The moving party alleges that he has a service-connected hearing loss and that he did not understand the examiner when he was asked about his drinking. The moving party argues he becomes very confused during examinations. It is further asserted that if he were a heavy drinker, he would have medical issues besides diabetes mellitus, bilateral hearing loss and hypertension. Finally, it is claimed he was not diagnosed with peripheral neuropathy prior to the diagnosis of diabetes mellitus in 2004. In its July 2010 determination, the Board considered the service treatment records, private medical records, VA examinations and an opinion from the Veterans Health Administration (VHA). The Board's denial of service connection for peripheral neuropathy was based on a determination that it was initially demonstrated many years after service, was not related to service, to include exposure to Agent Orange, and was not secondary to the Veteran's service-connected diabetes mellitus. Contrary to the moving party's allegations, this argument was addressed in the Board's decision. An August 2006 VA examination disclosed the Veteran was found to have diabetes in 2004. He reported his toes had been numb since he was diagnosed with diabetes mellitus in 2004. He related he drank 15 beers per week for the previous five years, but prior to that, drank eight beers a day for the preceding 10 to 15 years. The examiner diagnosed subjective complaint consistent with peripheral neuropathy of the feet. The examiner noted he reviewed the electronic medical record and that based on the reported history of long term alcohol use and the relatively recent onset of diabetes mellitus, it was not likely that the findings of neuropathy of the feet would be secondary to diabetes mellitus. He reported the onset of symptoms preceded the diagnosis of diabetes mellitus by two years. A similar history of alcohol consumption was noted on VA examination in August 2008. The pertinent diagnosis was peripheral neuropathy. The examiner concluded that the peripheral neuropathy was most likely caused by alcohol and less likely caused by diabetes mellitus, but both conditions might be playing a role. An opinion from a VHA physician dated February 2010 is of record. The examiner reviewed the claims folder and stated that since the Veteran's symptoms of numbness and tingling in the feet began in 2004, it was unlikely that peripheral neuropathy was related to service. He recited the Veteran's drinking history and noted it could cause peripheral neuropathy. He added that since the Veteran reported numbness and tingling in his feet around the diagnosis of diabetes mellitus in 2004, it was more likely that peripheral neuropathy was related to his history of heavy alcohol use. Finally, the examiner indicated that diabetes mellitus could contribute to his symptoms of peripheral neuropathy. As noted above, one argument advanced by the moving party is to the effect that peripheral neuropathy was not shown prior to his being diagnosed with diabetes mellitus. The Board noted that the February 2010 VHA opinion indicated his symptoms began in 2004, which was when the diagnosis of diabetes mellitus was made. In addition, it has been argued that the Board's determination was predicated on erroneous evidence, that is, his statements on a VA examination regarding his consumption of alcohol. The moving party alleges his hearing impairment resulted in his misunderstanding the question, and that, therefore, the amount of alcohol he consumed was incorrect. The Board notes that his alcohol consumption was described on both the August 2006 and August 2008 VA examinations. While not cited in the Board's July 2010 decision, during the hearing before a Veterans Law Judge in October 2009, the moving party addressed his use of alcohol. The fact the Board did not concur with the arguments of the moving party does not provide a basis that there was CUE in the decision. In essence, the moving party disagrees with how the Board evaluated the evidence. By definition, this cannot provide a basis for CUE. In summary, the Board considered all the evidence of record and provided reasons and bases for its decision denying the Veteran's claim for service connection for peripheral neuropathy of the lower extremities, to include as due to Agent Orange or as secondary to service-connected diabetes mellitus. The July 2010 decision was supported by the evidence then of record and the law as in effect at that time. The record does not establish 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 on the basis of CUE must be denied. ORDER The motion for revision or reversal of the July 2010 decision of the Board, which denied a claim for service connection for peripheral neuropathy of the lower extremities, to include as due to exposure to Agent Orange or as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs