Citation Nr: 1517084 Decision Date: 04/21/15 Archive Date: 04/24/15 DOCKET NO. 13-20 062 ) DATE ) ) THE ISSUE Whether a June 25, 1984 Board decision that denied reopening a claim of entitlement to service connection for retinitis pigmentosa contained clear and unmistakable error. REPRESENTATION The Veteran is represented by: Theodore C. Jarvi, Attorney ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 18, 1964 to July 30, 1964. In a June 25, 1984 decision, the Board of Veterans Appeals (Board) denied the Veteran's claim to reopen the issue of entitlement to service connection for retinitis pigmentosa. In June 2013, the Veteran submitted a motion to revise or reverse the June 25, 1984 Bard decision on the basis of clear and unmistakable error. FINDINGS OF FACT 1. The June 25, 1984 Board decision denied reopening the Veteran's claim of entitlement to service connection for retinitis pigmentosa. 2. In the June 25, 1984 decision, the Board did not make a determination as to whether the Veteran's retinitis pigmentosa was a congenital or development "defect" versus "disease." 3. Neither the presumption of soundness nor the clear and unmistakable evidentiary standard were for application in the June 25, 1984 decision given that the salient issue before the Board was whether the Veteran had submitted a new factual basis for service connection and/or whether she had submitted new and material evidence since the previous final denial. CONCLUSION OF LAW The June 25, 1984 Board decision that denied reopening the Veteran's claim of entitlement to service connection for retinitis pigmentosa did not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. 20.1400, 20.1403, 20.1404 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2013, the Veteran submitted a motion to revise or reverse, on the basis of clear and unmistakable error (CUE), a June 25, 1984 Board decision. Therein, The Board denied reopening a claim of entitlement to service connection for retinitis pigmentosa. See 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1403. Motions to revise Board decisions are not appeals. 38 C.F.R. § 20.1402. Requests for revision of a Board decision based on CUE are initiated by the filing of a motion. 38 C.F.R. § 20.1404. The decision on a motion alleging CUE in a Board decision is a matter over which the Board has original jurisdiction. As an initial matter, the Board notes that the Veterans Claims Assistance Act and its implementing regulations, codified in part at 38 C.F.R. § 3.159 (2014), are not applicable to CUE claims. See Simmons v. Principi, 17 Vet. App. 104, 109 (2003); Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); VAOPGCPREC 12-2001 at para. 7 (July 6, 2001) (holding that VA does not have "a duty to develop" in CUE claims because "there is nothing further that could be developed"). CUE claims are not conventional appeals, but instead are requests for revision of previous decisions. Claims based on CUE are fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but is instead collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-179. Moreover, a litigant alleging CUE has the burden of establishing such error on the basis of the evidence of record at the time of the challenged decision. Id. As an aside, even though a motion alleging CUE in a Board decision is not a "claim," the use of the word "claim" in this decision does not alter the legal definition thereof. For the sake of clarity, the Board finds that a discussion as to the relevant adjudicative history with respect to this claim is helpful. In July 1964, the Veteran submitted her original claim of entitlement to service connection for an eye condition, diagnosed as retinitis pigmentosa. This claim was denied in November 1964 rating decision, after which, she perfected an appeal to the Board. In November 1965, the Board denied the Veteran's claim. Therein, the Board found that the Veteran's retinitis pigmentosa is familial in origin, congenital or developing in childhood, and characterized by progressive degeneration of the retina and progressive diminution in sight. Further, the Board found that, considering the nature of the Veteran's retinitis pigmentosa and the evidence that it manifested prior to her active duty, there was no increase in disability during her active duty beyond that which was attributable to the natural progress of the condition. This Board decision is final. In October 1978, the Veteran submitted a claim to reopen the issue of entitlement to service connection for an "eye condition." In November 1978, a VA Regional Office (RO) issued a rating decision that denied reopening the Veteran's claim, finding that the evidence submitted was cumulative, duplicative, and not material. The RO also reiterated that the Veteran's claimed eye disability was determined to be congenital or developmental, and was not aggravated by her brief period of active service beyond the natural progression of the condition. Despite receiving notice of this decision and notice of her appellate rights in December 1978, the Veteran did not perfect an appeal. Moreover, the Veteran did not submit new and material evidence during the ensuing appeals period. As such, the November 1978 rating decision is final. In June 1983, the Veteran again submitted a claim to reopen the issue of entitlement to service connection for an "eye condition," which was denied in a June 1983 rating decision. Thereafter, the Veteran perfected an appeal of this decision to the Board. In a June 25, 1984 decision, the Board found that it had denied the Veteran's original claim of entitlement to service connection for retinitis pigmentosa in a November 1965 decision. Further, the Board noted that the RO denied the Veteran's claim to reopen the issue of entitlement to service connection for an "eye condition," diagnosed as retinitis pigmentosa, in a November 1978 rating decision, after which she did not perfect an appeal or submit new and material evidence and, thus, it too was final. In the June 25, 1984 decision, the Board ultimately found that "[t]he additional evidence submitted since the [previous denials] does not significantly alter the factual basis upon which [those decisions] were predicated." The Board did not find that the Veteran had submitted new and material evidence since the November 1978 rating decision. Consequently, the Board denied reopening the Veteran's claim. This Board decision is final. In April 2009, the Veteran submitted another claim to reopen the issue of entitlement to service connection for retinitis pigmentosa, which was denied in a December 2009 rating decision. In an October 2010 rating decision, the Veteran's claim was reopened, but, was again denied on the merits; the Veteran then perfected an appeal. In a February 2012 decision, the Board re-captioned the Veteran's claim as one of entitlement to service connection for visual impairment, previously diagnosed as retinitis pigmentosa. The Board then determined that the Veteran had submitted new and material evidence sufficient to reopen the service connection claim. Ultimately, the Board determined that the Veteran's visual impairment clearly and unmistakably pre-existed her active duty, but that the evidence of record did not clearly and unmistakably show that it was not aggravated therein. Consequently, the Board found that the presumption of soundness was not rebutted and, thus, the Veteran's visual impairment was incurred during her active duty. In other words, the Board granted entitlement to service connection for the Veteran's visual impairment, previously diagnosed as retinitis pigmentosa. In June 2013, the Veteran submitted a motion to revision of the June 25, 1984 Board decision. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice codified at 38 C.F.R. §§ 20.1400-141 1 (2014). Pursuant to 38 C.F.R. § 20.1404(a), the motion alleging CUE in a prior Board decision must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable VA file number; and the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions that fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. In this case, the June 2013 motion filed by the Veteran's attorney arguably satisfies the filing and pleading requirements set forth in 38 C.F.R. § 20.1404 for a motion for revision of a decision based on CUE. See Canady v. Nicholson, 20 Vet. App. 393, 402 -03 (2006). A prior Board decision is final and binding, but is reversible, if there is CUE in the decision. 38 U.S.C.A. § 7111. A decision of the Board that revises a prior Board decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1406. The Board's Rules of Practice, including 38 C.F.R. § 20.1403, define CUE as: (a) General. 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. (b) Record to be reviewed. (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (c) Errors that constitute clear and unmistakable error. 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. (d) Examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical 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. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. 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. Additionally, "[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In assessing whether CUE is present in a prior determination, a three-prong test is applied, which is as follows: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made;' and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). A determination that there was CUE in the decision must be based on the record and law that existed at the time of the prior adjudication in question, and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law, and 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. Thus, 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 clear and unmistakable error. Allegations that previous adjudications had improperly weighed and evaluated the evidence also can never rise to the stringent definition of clear and unmistakable error. Fugo, 6 Vet. App. at 43-44. In her June 2013 motion, the Veteran submitted no specific contentions as to the alleged CUE in the June 25, 1984 Board decision. In October 2012 and November 2014 memoranda in support of her June 2013 motion, the Veteran asserts that the Board committed CUE in the June 25, 1984 decision by not applying, or incorrectly applying the law then in effect. Specifically, the Veteran claims that the Board erroneously characterized her retinitis pigmentosa as a congenital or developmental "defect," instead of a congenital or development "disease." Further, the Veteran claimed the Board committed CUE in the June 25, 1984 decision by not applying, or incorrectly applying the presumption of soundness. The Veteran also asserts that the Board incorrectly applied a preponderance of the evidence standard (with the associated benefit of the doubt doctrine), instead of the evidentiary standard of clear and unmistakable. Ultimately, the Veteran then asserts that, but for the clear and unmistakable errors, the June 25, 1984 disposition would have been in her favor. Given the Veteran's assertions, the Board will first examine the law that was applicable at the time of the June 25, 1984 decision with regard to establishing service connection: Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 310 (1983); 38 C.F.R. § 3.303 (1983). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 313(b) (1983); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 313 (1983). History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1) (1983). To rebut the presumption of sound condition under 38 U.S.C.A. § 313 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 353 (1983); see Horn v. Shinseki, 25 Vet. App. 231, 239-40 (2012) (holding that, if a disability is not found on the entrance examination, but is shown by clear and unmistakable evidence to have pre-existed service, the burden is still on VA to prove lack of aggravation or that any increase was part of the natural progress by clear and unmistakable evidence). A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands-that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection-must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a pre-existing disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 311, the veteran's claim must be considered one for service incurrence or direct service connection. Where a pre-existing disease or injury is noted on the entrance examination, 38 U.S.C.A. § 353 of the statute provides 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." 38 U.S.C.A. § 353 (1983); 38 C.F.R. § 3.306(a) (1983). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (1983). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under 38 U.S.C.A. § 353 unless the underlying condition worsened. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (1983). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (1983). The VA Office of General Counsel has held that service connection may be granted for a congenital disease on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). The VA General Counsel's opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital or developmental "defect" for service connection purposes. A "disease" considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature pre-exists claimants' military service, but that service connection for such diseases could be granted only if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990) (finding that "service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service."). If the disorder is considered a congenital or hereditary "defect," service connection may be granted for disability resulting from any superimposed disease or injury. 38 C.F.R. § 3.303(c), 4.9 (1983); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In support of her November 2014 assertions as to CUE in the June 25, 1984 Board decision, the Veteran attached the decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). Therein, the Federal Circuit held that a congenital or developmental condition that cannot change is a "defect," and is not subject to the presumption of soundness under 38 U.S.C.A. § 1111 (or 38 U.S.C.A. § 311 in 1983). O'Bryan, 771 F.3d at 1380. The Federal Circuit also held that a congenital or developmental "disease" is progressive in nature (i.e., one that can worsen over time). Id. Further, the Federal Circuit held that a progressive congenital or developmental condition does not become a defect simply because it ceases to progress. Id. The above discussion of laws and regulations applies to the Veteran's allegations of CUE in the June 25, 1984 Board decision, as articulated by the Veteran in the November 2014 memorandum. Despite these allegations, the salient issue presented by the Veteran's claim at the time of the June 25, 1984 Board decision did not concern the merits of service connection. As discussed above, the Board denied the Veteran's original claim of entitlement to service connection for retinitis pigmentosa in November 1965. Additionally, the Veteran's November 1978 claim to reopen the issue of entitlement to service connection for retinitis pigmentosa was denied in a November 1978 rating decision. Indeed, in the June 25, 1984 decision, after reviewing the evidence received since the November 1965 Board decision and the November 1978 rating decision, the Board describes the issue before it is as follows: The evidence of record at the time of the prior appellate decision and the rating action in November 1978 have been reviewed. The issue before the Board is whether excerpts from publications, statements of the [V]eteran's mother and brother, a 1983 private medical report, and transcript of the testimony of the [V]eteran at a hearing on appeal are sufficient to establish a new factual basis for a grant of service connection. At the time of the June 25, 1984 Board decision, the general rule was that, "[w]hen a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered." 38 U.S.C.A. § 4004(b) (1983). However, an exception to this general rule states that, although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 4004(b); 38 C.F.R. § 3.156. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156. The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). If the claim is reopened, it will be reviewed on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). In June 25, 1984 decision, the Board reiterated previous findings that, generally, retinitis pigmentosa is considered to be a congenital or developmental disorder; however, the Board also noted that there are other factors that may cause retinitis pigmentosa. The Board then continued as follows: We note that the [V]eteran has attempted to establish that her retinitis pigmentosa is not familial or hereditary and must, therefore, have been acquired. However, whether the [V]eteran's retinitis pigmentosa is developmental or acquired is not critical, as it is clearly and unmistakably shown to have existed prior to service. In this regard, while the [V]eteran's recent statements and testimony are to the effect that she had no manifestations of retinitis pigmentosa prior to entry into service, these are not persuasive as service medical records reveal that a medical history furnished by the [V]eteran in service for treatment purposes clearly and unmistakable shows that symptoms characteristic of retinitis pigmentosa were present for a significant period of time prior to the [V]eteran's entry into service. Similarly, service medical records do not indicate that there was an ascertainable degree in the underlying pathology of her retinitis pigmentosa, especially in view of the [V]eteran's brief period of service. Therefore, we find that a new factual basis for a grant of service connection for retinitis pigmentosa is not established. Again, in her November 2014 memorandum, the Veteran asserts that the Board's June 25, 1984 analysis contains clear and unmistakable error because it (1) characterized her retinitis pigmentosa as a congenital or developmental defect instead of a disease; (2) failed to or incorrectly applied the presumption of soundness; and (3) incorrectly applied the preponderance evidentiary standard, with the corresponding benefit of the doubt doctrine. As demonstrated above, contrary to the Veteran's assertions, the Board did not characterize the Veteran's retinitis pigmentosa as a congenital or development defect or disease in the June 25, 1984 decision. The Board's discussion was limited to acknowledging that there was a potential question as to whether the Veteran's retinitis pigmentosa was a developmental/congenital condition or an acquired condition. The Board rendered no decision with respect to this question, finding that it was irrelevant to this salient issue presented by the Veteran's claim. As such, to the extent that the Veteran claims that the Board committed CUE in the June 25, 1984 decision by characterizing her retinitis pigmentosa as a congenital or developmental defect, the claim is denied. With respect to the application of the presumption of soundness, in the October 2012 and November 2014 memoranda, the Veteran contends that, in the June 25, 1984 decision, the Board should have applied the presumption of soundness and either granted the benefits sought on appeal, or cited clear and unmistakable evidence to rebut the presumption of soundness, neither of which the Board did. Generally, this assertion is a correct application of the laws and regulations in situations where the merits of a service connection claim are at issue. With regard to the Veteran's case, the presumption of soundness was for application in the June 25, 1984 decision only if the merits of the Veteran's claim of entitlement to service connection for retinitis pigmentosa were at issue. However, the merits of the Veteran's service connection claim for retinitis pigmentosa were addressed in the Board's November 1965 decision and that decision is final. As such, the claim of entitlement to service connection for retinitis pigmentosa must first be reopened before the presumption of soundness is again applicable. In the June 25, 1984 decision, the Board determined that the Veteran had not submitted evidence that established a new factual predicted since the previous final denials (i.e., the November 1965 Board decision and November 1978 rating decision). As such, to the extent that the Veteran's claims that the Board committed CUE in the June 25, 1984 decision by not applying or incorrectly applying the presumption of soundness, the claim is denied. Finally, with regard to the evidentiary standard used by the Board in the June 25, 1984 decision, again, the claim at issue therein concerned whether the Veteran had submitted evidence establishing a new factual basis and/or new and material evidence since the prior final denials. In evaluating such claims, the correct standard is a preponderance of the evidence, with application of the benefit of the doubt doctrine. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Consequently, the Board's use of this evidentiary standard instead of the standard of clear and unmistakable evidence does not constitute CUE in the June 25, 1984 decision. As such, to the extent that the Veteran's claim concerns an allegation of CUE predicted on the Board's use of an incorrect evidentiary standard, it is denied. In sum, the Board finds that the Veteran has not shown that any incorrect application of statutory or regulatory provisions was committed by the Board in the June 25, 1984 decision, or that any clear and unmistakable error committed by the Board in the June 25, 1984 decision was outcome determinative (i.e., the outcome would have been manifestly different). Thus, the Board finds there was no CUE in the June 25, 1984 decision and the determination is final. ORDER Revision on the basis of CUE in the June 25, 1984 Board decision is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs