Citation Nr: 1336089	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  11-24 808	)	DATE
	)


THE ISSUES

1.  Whether there was clear and unmistakable error (CUE) in the Board of Veterans' Appeals decision of July 12, 2007, which did not find new and material evidence sufficient to reopen a claim for service connection for heart disease.

2.  Whether there was clear and unmistakable error (CUE) in the Board of Veterans' Appeals decision of July 12, 2007, which did not find new and material evidence sufficient to reopen a claim for service connection for a systolic ejection murmur.


REPRESENTATION

Veteran represented by:	Robert C. Brown Jr., Attorney 


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to January 1966 and from April 1969 to June 1970. 

This matter comes before the Board of Veterans' Appeals (Board) as an original action on a motion received in August 2011 in which the moving part alleges CUE in a July 12, 2007, Board decision that found that new and material evidence had not been received to reopen claims of entitlement to service connection for heart disease and a systolic ejection murmur.  

In this regard, whether new and material evidence had been received to reopen the claims for service connection for heart disease and a systolic ejection murmur was before the Board in July 2007 at which time the Board did not find new and material evidence sufficient to reopen the claims.  The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  While that case was pending at the Court, the Veteran and the VA Office of General Counsel filed a Joint Motion to Remand.  In a November 2007 order, the Court granted the motion to vacate the July 12, 2007, Board decision, and remanded this case to the Board for readjudication consistent with the Joint Motion.  The Board subsequently did not find new and material evidence sufficient to reopen the claims for service connection for heart disease and systolic ejection murmur in an April 2008 decision.  

In the motion received in August 2011, the Veteran's attorney appears to raising the issue of whether there was CUE in a September 1970 rating decision that denied service connection for organic heart disease and a systolic ejection murmur.  This matter is referred to the RO for appropriate action.



FINDING OF FACT

The July 12, 2007, Board decision was vacated by the United States Court of Appeals for Veterans Claims, and there is no longer a case or controversy as to the issue of whether there was CUE in that decision. 


CONCLUSION OF LAW

The Board lacks jurisdiction over the issue of whether there was CUE in the Board decision of July 12, 2007, which did not find new and material evidence sufficient to reopen the claims for service connection for heart disease and a systolic ejection murmur.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.105(a), 20.101 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, provides, among other things, for notice and assistance to claimants under certain circumstances.  When the law and not the evidence are dispositive of the claim, the VCAA is not applicable.  Mason v. Principi, 16 Vet. App. 129, 132 (2002).  In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).  For these reasons, the Board concludes that no further notification or development of evidence is required. 

Previous determinations which are final and binding will be accepted as correct in the absence of CUE.  Where evidence establishes such error, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. § 3.105(a) (2013).

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 could not differ, that the result would have been manifestly different, but for the error.  Fugo v. Derwinski, 6 Vet. App. 40, 43 (1993).  In order to find CUE it must be determined (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different.  Grover v. West, 12 Vet. App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

In a CUE claim, "[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated."  Crippen v. Brown, 9 Vet. App. 412, 418 (1996).  Also, for a claim of CUE to be reasonably raised, the claimant must provide some degree of specificity as to what the error is, and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the error would have manifestly changed the outcome at the time it was made.  Bustos v. West, 179 F.3d 1378, 1380 (1999) (citing Russell, 3 Vet. App. at 313 (1992)); see also Fugo, 6 Vet. App. at 44 (1993).  Additionally, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable."  Fugo, 6 Vet. App. at 43-44.  Moreover, VA's breach of a duty to assist cannot form the basis for a claim of CUE.  Baldwin v. West, 13 Vet. App. 1, 5 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

A CUE claim "is not a generalized assertion of entitlement to benefits.  Rather, it is an assertion that the [Board] committed a particular clear and unmistakable error."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2001).  Each theory of CUE is an entirely separate and distinct claim.  Id. at 1362.  "Under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again.'"  Link v. West, 12 Vet. App. 39, 44 (1998) (quoting Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)).

The Veteran has alleged CUE in regards to the July 12, 2007, Board decision, which has since been vacated by the Court.  Since a CUE claim must be raised with a level of specificity, the claim in regards to the July 12, 2007 decision cannot be construed as a claim for CUE in the later April 2008 Board decision.  See Andre, 301 F.3d at 1361.  The issue of whether there was CUE in the Board decision of July 12, 2007, which did not find new and material evidence sufficient to reopen the claims for service connection for heart disease and a systolic ejection murmur, has therefore been rendered moot.

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  There remain no allegations of errors of fact or law for appellate consideration on the issue whether there was CUE in the Board decision of July 12, 2007.  Thus, the Board does not have jurisdiction to review this issue, and it must therefore be dismissed, without prejudice.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c).













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ORDER

The motion to revise the July 12, 2007, Board decision that did not find new and material evidence sufficient to reopen the claim for service connection for heart disease, on the basis of CUE, is dismissed.

The motion to revise the July 12, 2007, Board decision that did not find new and material evidence sufficient to reopen the claim for service connection for a systolic ejection murmur, on the basis of CUE, is dismissed.




                       ____________________________________________
	S. L. Kennedy
	Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs