Citation Nr: 1337895 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-24 844 ) DATE ) ) THE ISSUE Whether there is clear and unmistakable error in an April 14, 2011, Board decision which determined that an effective date of January 3, 2000, but not earlier, was warranted for the award of a total disability rating for progressive ankylosing spondylitis. REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The moving party (the Veteran) served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 motion by the Veteran, through his representative, requesting revision of a Board decision dated April 14, 2011, which granted an effective date of January 3, 2000, but not earlier, for the award of a total disability rating for progressive ankylosing spondylitis. In a separate April 14, 2011, decision, the Board determined that clear and unmistakable error (CUE) did not exist in August 1982 and March 1983 Board decisions; that April 2011 decision is not the subject of the current motion, but is the subject of a separate motion that will be addressed by the Board separately. For the remainder of this current motion, all references to the April 14, 2011, Board decision refer to the Board decision of that date which granted an effective date of January 3, 2000, for the award of a total disability rating for progressive ankylosing spondylitis. All final Board decisions are subject to revision under 38 C.F.R. §§ 20.1400, et seq., except for decisions on issues which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by a court of competent jurisdiction. See 38 C.F.R. § 20.1400(b) (2013). Here, the Veteran submitted his motion to revise the April 14, 2011, Board decision shortly after the decision was issued. There is no indication that, in the more than 2 years since the decision, he appealed the same Board decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the April 14, 2011, Board decision is a final decision to which the provisions pertaining to motions to revise on the basis of CUE are applicable. The record reflects that in September 2013, the Board advised the Veteran and his representative that the motion had been docketed, advised them of the relevant citations to the law and regulations pertaining to his motion, and afforded them at least 30 days in which to submit any evidence or argument. FINDINGS OF FACT 1. In an April 14, 2011 decision, the Board determined that an effective date of January 3, 2000, but not earlier, was warranted for the award of a total disability rating for progressive ankylosing spondylitis. 2. There was no outcome determinative error of fact or law in the Board's April 14, 2011 decision finding that an effective date of January 3, 2000, but not earlier, was warranted for the award of a total disability rating for progressive ankylosing spondylitis. CONCLUSION OF LAW The April 14, 2011 Board decision finding that an effective date of January 3, 2000, but not earlier, was warranted for the award of a total disability rating for progressive ankylosing spondylitis is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially notes that the Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA's) duty to notify and assist claimants in substantiating their claims for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The statutory and regulatory provisions of the VCAA do not, however, apply to allegations of clear and unmistakable error in prior decisions of the Board. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). The Board notes that the moving party was provided with appropriate notice in connection with his motion in September 2011. By way of history, the evidence before the Board at the time of the April 2011 decision showed that service connection for a lower spine disability (described as recurrent lumbosacral strain) was granted in December 1970; a 10 percent disability evaluation was assigned. A December 1971 rating decision reduced the assigned evaluation to noncompensable (zero percent). In December 1977, the Veteran filed a claim seeking an increased rating for the lower spine disability. A May 1978 decision denied that claim, and also denied service connection for ankylosing spondylitis, a disorder which was identified during a March 1978 VA examination. In pursuing an appeal of the May 1978 rating action, the Veteran attended a rating board hearing in March 1980. During the hearing, the evaluation currently assigned the service-connected lower back disorder was described as noncompensable. The Veteran was noted during the hearing to use a back brace for ankylosing spondylitis. In an August 1980 decision, VA increased the disability evaluation assigned the service-connected low spine disability to 10 percent disabling, and continued to deny service connection for ankylosing spondylitis. In the August 6, 1982 decision, the Board denied the Veteran's claim of service connection for ankylosing spondylitis, granted service connection for traumatic arthritis of the lumbar spine, and remanded the issue of entitlement to an increased rating for lumbosacral strain. Following the August 1982 Board decision, VA, in an October 1982 rating decision, reduced the evaluation assigned the lumbosacral strain to noncompensably disabling. In the March 28, 1983 decision, based on a finding that the Veteran had traumatic arthritis of the low spine, the Board restored a 10 percent evaluation for the lower spine disability but denied more than 10 percent for that disability. The Board, in the April 14, 2011 decision the moving party seeks to revise, determined that, following the August 1982 and March 1983 Board decisions, the next communication from the Veteran or any representative seeking service connection for ankylosing spondylitis or an increased rating for low back disability was received in January 3, 2000. The Board further determined that the January 2000 communication remained pending until the January 2003 rating action which granted service connection for ankylosing spondylitis and assigning a 100 percent disability for the low back disorder. The Board lastly determined that the evidence on file around the time of the January 2000 claim was sufficient to establish that the disorder was 100 percent disabling at the time of the claim. In adjudicating the claim, the Board cited to 38 C.F.R. §§ 3.1(p) and 3.155 regarding the definition of a claim and informal claim. The Board also cited to 38 U.S.C.A. § 5110(b)(1) and 38 C.F.R. § 3.400(b) in explaining the general rule that the effective date is based on the later of the date of claim or date entitlement arose. In seeking to revise the April 2011 Board decision, the Veteran alleges that the correct facts as they were known at the time were not before the Board. Specifically, he contends that the March 1980 rating board hearing erroneously indicated that his lower back disorder was evaluated as noncompensably disabling, and that the April 2011 Board decision relied on this information. Motions for revision of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Rules of Practice of the Board at 38 C.F.R. Part 20. Clear and unmistakable error 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. Review for CUE in a prior Board decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403. See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 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 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. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE include a new medical diagnosis that corrects an earlier diagnosis considered in the Board's decision; the Secretary's failure to fulfill the duty to assist; or a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board's decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). As the moving party, the Veteran in this case has met the basic filing requirements of 38 C.F.R. § 20.1404(a). The Veteran has also set forth a clear and specific allegation of CUE in the April 14, 2011 Board decision and has pleaded an error as to the facts with sufficient specificity to enable the Board to decide the motion to revise on the merits. The moving party in this case does not allege that the April 14, 2011 Board decision did not apply the appropriate law or regulations governing the determination of the proper effective date for the award of a total evaluation for the low back disability. The Board notes that the April 2011 decision in fact cited to and relied on the appropriate law and regulations pertaining to the assignment of effective dates. The Board decision properly noted that the effective date in the Veteran's case was controlled by the later of the date of claim or the date entitlement arose. The Veteran does not contend that the April 2011 Board decision misapplied any law or regulation in making the determination as to the proper effective date, and the Board finds that the April 14, 2011 decision in fact did apply the appropriate law and regulations. The sole argument advanced by the moving party instead is that the correct facts as they were known at the time were not before the Board. Specifically, that the "Fort Miley" hearing (apparently, the March 1980 rating board hearing) erroneously indicated that he was at that time receiving a noncompensable rating for his lower back disorder. His suggestion is that he met the criteria for a total rating as far back as the date of that hearing. The Board points out that the reference to his receipt of a noncompensable rating for the low back disability at the March 1980 hearing was actually correct. A December 1971 rating decision reduced the evaluation assigned the low back disability to noncompensable, and this noncompensable rating was in effect at the time of the hearing. Although the Veteran now contends that he received a letter from VA in the past which informed him that he was always in receipt of at least a compensable rating for the back disability, no such letter is on file, and the record before the Board clearly shows that the Veteran was not in receipt of a compensable rating at the time of the March 1980 hearing. In any event, by the time of the August 1982 Board decision, the evaluation for the back disorder had been raised to 10 percent. Shortly after the August 1982 Board decision, the evaluation was again reduced to noncompensable, until the March 1983 Board decision restored the 10 percent rating. As to the Veteran's contention that the evidence in March 1980 established his entitlement to a 100 percent rating for his low back disorder, given the August 1982 Board decision which denied service connection for ankylosing spondylitis and the March 1983 Board decision denying a rating in excess of 10 percent for the low back disability, the determination by the April 2011 Board decision that an effective date earlier than January 2000 was not warranted is not undebatably erroneous. In short, not only is there no indication that the April 2011 Board decision failed to apply or misapplied the correct laws, but there also is no indication that the correct facts were not before the Board at the time of the April 2011 decision, or that the decision otherwise contained any error such that the outcome of the decision would have been different but for the error. In short, the Veteran's sole allegation of error, namely that the facts as they were known at the time of the April 14, 2011 Board decision were not before the Board, is not substantiated by the record. The record otherwise shows that the April 2011 Board decision was based on the correct law and facts as they were known at the time. There was no error in the decision which would have manifestly changed the outcome. There was also no rare kind of error, to which reasonable minds could not differ, that would have led to a result manifestly different but for the error. See 38 C.F.R. § 20.1403. For the foregoing reasons, the Board does not find that the April 14, 2011, Board decision should be revised or reversed on the grounds of CUE. Because the Veteran submitted a specific allegation of CUE, a denial of the motion on the merits, rather than dismissal without prejudice, is appropriate. See Simmons v. Principi, 17 Vet. App. 104 (2003). ORDER The motion to revise or reverse the April 14, 2011 decision of the Board, which determined that an effective date of January 3, 2000, but not earlier was warranted for the award of a total disability rating for progressive ankylosing spondylitis is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs