Citation Nr: 1334392 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-04 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether there was clear and unmistakable error (CUE) in a September 1973 Board decision that denied entitlement to service connection for a back disorder. [The issue of whether new and material evidence has been received to reopen the claim for service connection for a back disorder will be addressed in a separate Board decision under a different docket number.] REPRESENTATION Moving party represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The moving party served on Active Duty for Training (ACDUTRA) from July 31, 1970 to December 18, 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 motion for revision of the September 1973 decision of the Board which denied service connection for a back disorder. By letter dated June 11, 2013, the moving party and his representative were advised that the CUE motion was placed on the Board's docket and that the rules relating to CUE motions could be found at 38 U.S.C.A. § 7111 and 38 C.F.R. §§ 20.1400-11. In a June 2013 statement, the representative reported the moving party received the June 2013 notice of CUE motion, does not wish to review the file, and requested the motion be referred to the Board for a decision. FINDINGS OF FACT 1. In a final decision dated on September 21, 1973, the Board denied service connection for a back disorder. 2. At the time of the September 1973 decision, the correct facts were before the Board and there is no showing that the Board misapplied the existing statutory or regulatory provisions as they existed. CONCLUSION OF LAW CUE in the Board's September 1973 decision, that denied service connection for a back disorder, has not been established. 38 U.S.C.A. §§ 5107, 5110, 7105, 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Appeals for Veterans Claims (Court) has held that the Veterans Claims Assistance Act of 2000 (VCAA) does not apply to motions for CUE in prior Board decisions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Therefore, further discussion of the VCAA is unnecessary. Nevertheless, the Board notes that the moving party has been accorded ample opportunity to present his contentions, and there is no indication he has further argument to present. The moving party alleges CUE in a September 1973 Board decision that denied entitlement to service connection for a back disorder. A final decision by the Board is subject to revision on the grounds of CUE. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). In this case, the moving party's representative specifically alleged in a March 2013 written brief that the Board committed CUE in its September 21, 1973 decision by failing to correctly apply the statutory provisions of aggravation under 38 C.F.R. § 3.306. The result would have been manifestly different, but for the alleged error, to show there was an increase in the back disorder because of a fall during basic training. The brief also included the moving party's name and applicable file number. Thus, the procedural requirements for filing have been met. See 38 C.F.R. § 20.1404(a), (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. 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. See 38 C.F.R. § 20.1403(a); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal that, 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 CUE. See 38 C.F.R. § 20.1403(b) and (c) (2013); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Examples of situations that are not CUE are: (1) a new medical diagnosis that 'corrects' an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist a claimant with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). At the time of the September 21, 1973 Board decision, VA regulations provided that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306(a) (1973). In this case, while the moving party explicitly alleges CUE in the September 1973 Board decision due to the incorrect application of 38 C.F.R. § 3.306, the basis for such an allegation is based on a disagreement as to how the facts were weighed and evaluated. Specifically, the March 2013 CUE motion explained that "the Board placed too much emphasis on the x-ray films and ruled out evidence that clearly supported that aggravation had occurred while in-service . . . [provided no] discussion of the highly relevant lay evidence that had been established by the record before the Board decision that ultimately substantiated the [moving party's] claim that the fall from the obstacle course had occurred [and provided a] flawed interpretation of evidence necessary to substantiate increased severity of a disability during service." It was also asserted that since the Board accepted the fact that a back injury occurred during basic training, it is difficult to reconcile why the Board did not also find that injury aggravated the pre-existing back injury. As noted above, a valid motion for CUE requires more than a disagreement as to how the facts were weighed or evaluated. See Crippen v. Brown, 9 Vet. App. 412 (1996). In this case, the moving party argues that the Board incorrectly weighed the evidence when it denied his claim in September 1973. Consequently, his argument is not subject to CUE. See 38 C.F.R. § 20.1403(d). Further, it does not appear that the Board committed an error 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. The correct facts, as they were known at the time, were before the Board. In fact, the Board discussed the June 1970 entrance and December 1970 separation examination reports, private medical statements by Dr. M. B. (April 1971), Dr. R. S. (June 1972), and Dr. A. P. (December 1972), June 1972 VA examination report, April 1972 statements by the moving party, and a July 1973 summary compiled by a VA radiologist of the pertinent x-ray results dated June 9, 1970, June 12, 1970, August 10, 1970, August 29, 2010, September 1970, and June 1972. Such evidence was considered and weighed their probative value, and the Board made factual determinations, to include that x-ray files dated September 1970 and later do not reflect any significant differences on comparison with films dated August 10, 1970 which were taken prior to the reported back injury during training. As such, the Board's conclusions that a back disorder existed prior to ACDUTRA and there was no increase in the severity of the pre-existing disorder during ACDUTRA, were reasonably supported by the evidence of record and does not constitute CUE. See 38 C.F.R. § 20.1403(d)(4)(3); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE). Therefore, the September 1973 Board decision correctly applied the statutory provisions of aggravation under 38 C.F.R. § 3.306 to the factual determinations rendered following evaluation of the entire evidence of record at that time. For the reasons discussed above, the Board concludes that the motion for CUE in the Board's September 1973 decision, for service connection for a back disorder, is denied. As shown above, the facts do not reveal that it is absolutely clear that a different result would have ensued, or that the result would have been manifestly different, but for the alleged error. 38 C.F.R. § 20.1403(c); Russell, 3 Vet. App. at 310. ORDER The motion to revise the September 1973 Board decision on the basis of CUE is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs