Citation Nr: 1611309 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 15-25 356 ) DATE ) ) THE ISSUE Whether clear and unmistakable error (CUE) was committed in an April 6, 2015 Board decision that denied entitlement to service connection for a low back disability and hypertension. REPRESENTATION Moving party represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Moving Party is the Veteran. He had active service from September 1970 to September 1974. This matter is currently before the Board on the Moving Party's May 2015 motion for revision or reversal of the April 6, 2015 Board decision that denied entitlement to service connection for a low back disability and hypertension. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. FINDING OF FACT The Moving Party has advanced no specific claim of CUE in the April 6, 2015 Board decision. CONCLUSION OF LAW Because the pleading 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 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Following the issuance of the April 2015 Board decision, the moving party asserted in a statement received May 26, 2015, that there was a "clear and unmistakable error" in a decision that denied entitlement to service connection for a low back disability and hypertension. However, the Moving Party's motion referred to "the latest finding docket # 08-36 592" and did not indicate the date of the Board decision in question. Thus, the motion fails to satisfy the requirement set forth in 38 C.F.R. § 20.1404(a) (2015). Nevertheless, the Board inferred from the Moving Party's statement that he was referencing the April 6, 2015 Board decision that denied his claims of entitlement to service connection for a low back disability and hypertension. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20 (2015). CUE 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 the law that existed when that decision was made. 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. A disagreement as to how the facts were weighed or evaluated may not be the basis of a claim of CUE. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. § 20.1403 (2015). A Motion to Revise a Board decision must set forth clearly and specifically the alleged CUE 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. Non-specific 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 the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 CFR § 20.1404 (2015). Under 38 C.F.R. § 20.1409(c) (2015), the Board's regulations specify that a moving party has only one opportunity to challenge a Board decision on the basis of CUE. The Federal Circuit has affirmed that a claimant is allowed only one request for revision based on CUE for each Board decision, even if a claimant's second request for revision based on CUE attempts to raise a different theory of CUE. Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012). In that case, the Federal Circuit held that that there is a difference between a Board decision and RO decisions with respect to CUE claims. The regulations governing CUE challenges to finality of RO decisions do not limit the number of times a claimant may raise a CUE claim as to a specific RO decision. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2015); Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). In contrast, the regulation limits each claimant to one challenge to the finality of each Board decision. Hillyard, 695 F.3d at 1259 (rejecting the argument that each "theory" of CUE represents a different claim and thus 38 C.F.R. § 20.1409(c) permits multiple CUE challenges as long as each challenge is based on a different CUE theory). In addressing the requirement of specificity in claims of CUE, the Court has clarified that: In contrast, it is harder in the context of CUE motions to define what amounts to a sympathetic reading because broadly reading CUE motions is a double edged sword. While a broad reading can lead to faster adjudication of CUE theories and can expedite receipt of benefits if the motion is successful, it also has the potential to have broad res judicata effects as to motions that are denied. See Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed.Cir.2005) (holding that a Board decision is final as to all theories of entitlement before the Board, not just those actually considered and rejected). Hence, the Court must consider the potential prejudice that would be caused to claimants if the Secretary "sympathetically" reads a theory into a CUE motion and then proceeds to issue a decision rejecting that theory so as to preclude any further attempts at revision. Arguably, CUE theories are more likely to be successful when the claimant (self-represented or with representation) clearly intends to raise it and marshals all the facts, law, and potential arguments in support of it than when the Secretary attempts to construct a theory from a cryptic statement or fleeting reference in a pleading. Hence, the Court must be sensitive to the proper line between allegations that are rough but recognizable and those that lack the necessary specificity. Certainly, a sympathetic reading of a CUE motion can fill in details where the theory is not fully fleshed out, but it cannot supply a theory that is absent. Accordingly, the Court concludes that Andrews does not shift the burden onto the Secretary to imagine ways in which the original decision might be defective. Rather a sympathetic reading of a CUE motion requires the Secretary to fill in omissions and gaps that an unsophisticated claimant may leave in describing his or her specific dispute of error with the underlying decision. See Canady v. Nicholson, 20 Vet. App. 393, 402 (2006) (noting that manifestly changed outcome might be "obvious from the context of the pleadings" or "inferred from a sympathetic reading"). For example, the Secretary may be required to infer the appropriate authority based upon a claimant's description of the factual basis of his CUE motion or to review the record for appropriate evidence where the appellant cites to a narrow authority that pertains only to one specific theory of Board error. However, if the pleading could encompass numerous theories that may be raised by the record, the Secretary is not required either to adjudicate them all or to decide which ones have the most merit. In that circumstance, a CUE motion is properly dismissed without prejudice. See 38 C.F.R. § 20.1404(b) (stating that the Board must dismiss without prejudice when the Board determines that a CUE claim lacks the requisite pleading specificity); see also Canady, 20 Vet.App. at 400 (noting that a request for revision that fails to comply with the pleading requirements of 38 C.F.R. § 20.1404(b) "shall be dismissed without prejudice to refiling"). In saying this, the Court is not trying to establish a bright-line rule. Mechanical rules are easily misapplied to unsophisticated pro se pleadings. Rather the Court recognizes that the difficult task of sympathetically reading CUE motions must apply common sense to balance reasonable assistance to Veterans against undue burdens on the Secretary and the negative consequences of sympathetically raising weak CUE arguments only to deny them. Acciola v. Peake, 22 Vet. App. 320, 326-327 (2008). In its April 6, 2015, decision, the Board concluded that the preponderance of the evidence was against a finding that the Veteran's low back disability and hypertension were incurred during or as a result of service or his service-connected left ankle disability. In reviewing the Moving Party's May 25, 2016 submission and his annotations on a copy of the April 2015 Board decision and voluminous online materials, the Board is unable to ascertain the specific nature of his CUE claim. The Moving Party identifies no specific error in the Board's April 6, 2015, decision; rather, the Moving Party appears to assert that: "VA says that falls caused knees, ankles wrists etc. since 1972, they did this in 2013. Now VA says falls did not cause back injury due to same falls? Contradictory!" Given that the Moving Party's pleading could encompass any number of theories that may be raised by the record, but does not specifically identify an error or errors in the Board's decision, the Board concludes that the Moving Party's motion to reverse or revise the Board's April 6, 2015 decision lacks the necessary specificity required by the above cited authorities. It would be prejudicial to him for the Board to accept as legally sufficient a motion, which as defined under applicable law is not legally sufficient and which would foreclose any opportunity for him to raise a legally sufficient motion. Hillyard, 695 F.3d at 1259. Therefore, it must be dismissed without prejudice to refiling. 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(b) (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.