Citation Nr: 1608161 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 15-35 977 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a September 2009 Board of Veterans' Appeals (Board) decision that denied service connection for hyperthyroidism, heart disease, gouty arthritis, and kidney disease. (The issue of whether new and material evidence was received to reopen the claim for service connection for ischemic heart disease (also claimed as heart disease), to include as due to exposure to Agent Orange; and if so, whether the claim should be granted is the subject of a separate decision.) ATTORNEY FOR THE BOARD R.M.K., Counsel FINDINGS OF FACT 1. The Veteran (the Moving Party) had active duty service from August 1960 to February 1981. 2. The Moving Party has not filed a motion setting forth clearly and specifically the alleged CUE, or errors, of fact or law in the Board's September 15, 2009, decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. CONCLUSION OF LAW Because the requirements for a motion for revision of a decision based on CUE have not been met, the motion must be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's December 2015 motion to advance this matter on the Board's docket based on age is hereby granted. 38 U.S.C.A. § 7107 (West 2014); 38 C.F.R. § 20.900(c) (2015). A motion for revision of a decision based on CUE 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 Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals 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 which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a) (2015). A CUE motion must also set forth clearly and specifically the alleged clear and unmistakable error, 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. Nonspecific 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 which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b) (2015). Following the issuance of the September 2009 Board decision, the Moving Party asserted in a statement dated July 29, 2010, that the Board committed CUE in adjudicating service connection of his diseases. The Moving Party argued that the Board did not request his service treatment record; therefore, the decision was hasty and baseless. He also asserted in November 2010 that Veterans Adjudication Procedure Manual, M21-1, provisions are applicable and in December 2013 he asserted that he had inland, brown water service and had set foot in the Republic of Vietnam. However, the Board decision found that he did not have ischemic heart disease. There has been no assertion that the Board incorrectly applied a law or fact in that regard. Moreover, a breach of a duty to assist cannot constitute CUE and 'grave procedural error' does not render a decision of VA non-final. Cook v. Principi, 318 F. 3d 1334 (Fed. Cir. 2002). A CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and an incomplete record, factually correct in all other respects, is not CUE. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Furthermore, the Moving Party's statement did not specify the error or errors of fact or law in the Board decision, the legal or factual basis for such allegations, or why the result of the decision would have been manifestly different but for the alleged error; thereby, it failed to satisfy the requirements set forth in § 38 C.F.R. § 20.1404(a) (2015). In a November 2015 letter, the Board informed the Moving Party that his motion had been assigned a docket number, and urged him to review the rules relating to CUE motions found at 38 U.S.C.A. § 7111 (West 2014) and 38 C.F.R. §§ 20.1400-141 1 (2015). The Board received no response from the Moving Party. Because the moving party's motion fails to comply with the requirements set forth in 38 C.F.R. § 20.1404(a) (2015), the motion is dismissed without prejudice. ORDER The motion is dismissed without prejudice to refiling. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Only a final decision of the Board of Veterans' Appeals may be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7252 (West 2014); Wilson v. Brown, 5 Vet. App. 103, 108 (1993) ("A claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue.") This dismissal under 38 C.F.R. § 20.1404(a) (2015) is not a final decision of the Board. 38 C.F.R. § 20.1409(b) (2015). This dismissal removes your motion from the Board's docket, but you may refile the motion at a later date if you wish.