Citation Nr: 1448167 Decision Date: 10/30/14 Archive Date: 11/05/14 DOCKET NO. 11-06 808 ) DATE ) ) THE ISSUES 1. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for skin cancer contains clear and unmistakable error (CUE). 2. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a disability manifested by joint stiffness contains clear and unmistakable error (CUE). 3. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a back disability contains clear and unmistakable error (CUE). 4. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a disability manifested by headaches contains clear and unmistakable error (CUE). 5. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a psychiatric disability other than posttraumatic stress disorder contains clear and unmistakable error (CUE). 6. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a disability manifested by numbness in the hands and feet contains clear and unmistakable error (CUE). 7. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a respiratory disability contains clear and unmistakable error (CUE). 8. Whether a May 9, 2007 Board decision to dismiss a claim for service connection for a disability manifested by sleeplessness contains clear and unmistakable error (CUE). 9. Whether a May 9, 2007 Board decision to dismiss a claim for a total disability rating due to individual unemployability contains clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Robert C. Brown, Jr., Attorney at Law ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The moving party is a Veteran who had active duty from January 1962 to March 1965. These matters come before the Board as an original action on the motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on May 9, 2007. FINDING OF FACT The May 9, 2007 Board decision was adequately supported by the evidence then of record, and was not undebatably erroneous; the record does not demonstrate that the correct facts, as they were known in May 2007, were not before the Board or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for skin cancer. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 2. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a disability manifested by joint stiffness. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 3. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a back disability. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 4. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a disability manifested by headaches. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 5. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a psychiatric disability other than PTSD. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 6. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a disability manifested by numbness in the hands and feet. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 7. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a respiratory disability. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 8. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied service connection for a disability manifested by sleeplessness. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). 9. Clear and unmistakable error is not shown in the May 9, 2007 Board decision which denied a TDIU. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the Veteran's CUE claim is not subject to the provisions of the VCAA. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (holding there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions.") As a claim of CUE is not by itself a claim for benefits, CUE is fundamentally different from any other kind of action in the VA adjudicative process. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. The Board notes that the moving party has been accorded sufficient opportunity to present his contentions. The moving party has been represented by a private attorney in these matters. There is no indication that they have further argument to present. II. Motion for Revision of Board Decision based on CUE A. Law and Regulations The Board has original jurisdiction to consider motions for revision of prior Board decisions. Motions should be filed at the Board, but requests filed elsewhere within VA and transmitted to the Board shall be treated as if filed at the Board. See 38 C.F.R. § 20.140 (c), (d). CUE is a very specific and rare kind of error; it is the 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. See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. 38 C.F.R. § 20.1403 codifies the current requirements for a CUE motion that the Court of Appeals of Veterans Claims (Court) has defined for motions of CUE in Board decisions as: (1) 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. (2) 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. (3) It is 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. Additionally, 38 C.F.R. § 20.1403(d) gives examples of situations that are not CUE. CUE is not a: changed medical diagnosis; failure to fulfill the duty to assist; disagreement as to how the facts were weighed or evaluated; change in interpretation of a statute or regulation. 38 C.F.R. § 20.1403(c) also indicates that, where it is not absolutely clear that a different result would have ensued, but for the error, the error complained of cannot be CUE. No new evidence will be considered, unless the Board decision was decided on or after July 21, 1992. See 38 C.F.R. § 20.1403(b). In those cases, the record technically includes matter possessed by VA not later than 90 days before the file was transferred to the Board, provided that the documents could reasonably be expected to be part of the record. See 38 C.F.R. § 20.1403(b)(2). In addition, the law precludes remands or other referral for the purpose of deciding the motion. 38 U.S.C.A. § 7111(e); 38 C.F.R. § 20.1405(b). The benefit of the doubt provisions of 38 U.S.C.A. § 5107(b) are inapplicable in CUE. See 38 C.F.R. § 20.1411(a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. B. Motion for Revision of 2007 Board Decision based on CUE The moving party asserts that the May 9, 2007 Board decision committed CUE dismissing the Veteran's claims for service connection for skin cancer, a disability manifested by joint stiffness, a back disability, a disability manifested by headaches, a psychiatric disability other than PTSD, a disability manifested by numbness in the hands and feet, a respiratory disability, a disability manifested by sleeplessness, and entitlement to a TDIU. Specifically, the moving party argues that in 2007, the Board erred in accepting a February 2007 statement from the Veteran as a valid withdrawal request of all of the issues that were then on appeal. A review of the record reflects that the moving party did not appeal the May 9, 2007 Board decision. Accordingly, it became final. See 38 C.F.R. § 20.1100(a). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In the May 2007 decision, the Board noted that in March 2007, the Veteran submitted correspondence in which he expressed his desire to withdraw his appeal. The Board noted that the withdrawal of an appeal was deemed a withdrawal of the notice of disagreement and substantive appeal as to all issues to which the withdrawal applies, and a withdrawal submitted after transfer of the record to the Board becomes effective when received by the Board. The Board recognized that the Veteran subsequently wished to retract his statement withdrawing the appeal; however, the applicable regulations did not provide for the "undoing" of withdrawals. The Board remarked that the Veteran's expressed desire to retract his withdrawal would not be considered a timely notice of disagreement with the original rating decision on appeal; as such, the claims could only be reopened and reconsidered if new and material evidence was presented with respect to each claim sought to be reopened. Initially, the Board notes that the documents considered in the 2007 Board decision consisted primarily of three documents. The first document is a February 3, 2007 letter from the RO informing the Veteran that his appeal had been certified to the Board, and his records were being transferred to the Board. The second document is a letter date stamped as received by the Board on February 22, 2007, in which the Veteran begins by acknowledging the VA letter dated February 3, 2007. The Veteran then states, "I wish to withdraw my letter of appeals dated February 3, 2007." He signed the letter. The Veteran sent another copy of the same letter along with a cover page marked "See attached letter requesting the withdrawal of my appeal mailed 2-17-07"; this second copy is date stamped as received by the Board on March 22, 2007. The third document is a letter date stamped as received by the Board on March 29, 2007, which reads, "In reference to my statement asking the Board to withdraw my appeal. I was confused and acting on bad advice that had been given to me by various organizations. I am requesting that the Board go forward and make a decision on my appeal as expeditiously as practicable. Thank you." In March 2011, the Board received the moving party's motion for revision or reversal of the May 2007 Board decision. The moving party contends that the Veteran's original withdrawal request failed to meet the specificity required by 38 C.F.R. § 20.204(b), and as such, it was error for the Board to consider the request. At the time of the May 2007 Board decision, 38 C.F.R. § 20.204 read in pertinent part: (b) Filing-(1) Form and content. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. They must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. ... (3) When effective. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction. Thereafter, it is not effective until received by the Board. A withdrawal received by the Board after the Board issues a final decision under Rule 1100(a) (§20.1100(a) of this part) will not be effective. (c) Effect of filing. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filled, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 20.204 (2006) Here, the February 2007 letter from the Veteran includes his name, file number, and a statement that his appeals were withdrawn. As such, the requirements of 38 C.F.R. § 20.204(b) were met, and the May 2007 Board properly considered the February 2007 letter from the Veteran as a withdrawal of all of the issues then on appeal. The May 2007 Board further considered the possibility that the Veteran's subsequent "withdrawal of the withdrawal" could be considered a new Notice of Disagreement; however, in accordance with 38 C.F.R. § 20.302(a), it would not be timely. In so stating, it appears that the Board properly considered 38 C.F.R. § 20.204(c). As such, the regulation in question was properly applied; the Board does not find any evidence that the 2007 Board decision made any error-let alone that any such an error would have manifestly changed the outcome of the issue. The Board acknowledges that there were multiple issues on appeal, and the Veteran did not use the exact words "withdrawn in its entirety." However, the fact that the Veteran used the plural "appeals" as opposed to the singular "appeal" in the February 2007 letter supports the May 2007 Board's interpretation that the Veteran had withdrawn his appeal of all issues. This interpretation is further supported by the Veteran's subsequent resubmission of the same letter in March 2007 directly to the Board with a note indicating that he desired a withdrawal. To the extent that the moving party asserts that the February 2007 letter lacked the specificity to constitute a withdrawal, that assertion is simply a disagreement with the factual determination that the Board reached and with how the Board weighed the evidence in its May 2007 decision. However, disagreement as to how the facts were evaluated by the Board cannot constitute CUE in a Board decision. 38 C.F.R. § 20.1403(d); Fugo v. Brown, 6 Vet. App. 40 (1993); Crippen v. Brown, 9 Vet. App. 412 (1996). In conclusion, the moving party has not identified any specific finding or conclusion in the May 2007 Board decision which was undebatably erroneous. Moreover, the record does not reveal any 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. For these reasons, the Board finds that the Board's May 2007 decision, which dismissed the Veteran's claims for service connection for skin cancer, a disability manifested by joint stiffness, a back disability, a disability manifested by headaches, a psychiatric disability other than PTSD, a disability manifested by numbness in the hands and feet, a respiratory disability, a disability manifested by sleeplessness, and entitlement to a TDIU, does not contain CUE. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. Accordingly, the motion is denied. ORDER The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for skin cancer, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a disability manifested by joint stiffness, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a back disability, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a disability manifested by headaches, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a psychiatric disability other than PTSD, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a disability manifested by numbness in the hands and feet, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a respiratory disability, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for service connection for a disability manifested by sleeplessness, is denied. The motion for reversal or revision of the May 2007 Board decision, which dismissed a claim for entitlement to a TDIU, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs