Citation Nr: 18140085 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-33 993 DATE: October 2, 2018 ORDER Entitlement to an effective date earlier than March 27, 2003 for the award of service connection for headaches, to include on the basis of clear and unmistakable error (CUE) in an April 1989 Board of Veterans’ Appeals decision, is denied. FINDING OF FACT 1. An April 1989 rating decision denied service for headaches. The decision was upheld by the Board of Veterans’ Appeals in April 1989. The Veteran did not appeal and that decision became final. 2. The April 1989 rating decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions then in effect were ignored or incorrectly applied. CONCLUSION OF LAW 1. Clear and unmistakable error is not shown in the April 1989 Board of Veterans Appeals decision denying service connection for headaches 38 U.S.C. §§ 1131, 5109A, 7104, 7105; 38 C.F.R. §§ 3.104 (a), 3.105(a), 3.160(d), 20.302, 20.1103, 3,400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to September 1975. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). If evidence establishes the error, the prior decision shall be reversed or revised. For the purpose of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. Review to determine whether CUE exists in a case may be instituted by the Board on the Board’s own motion or upon request of the claimant. A request for revision of a decision of the Board based on CUE may be made at any time after that decision is made. Such a request shall be submitted directly to the Board and shall be decided by the Board on the merits, without referral to any adjudicative or hearing official acting on behalf of the Secretary. 38 U.S.C. § 7111. Motions for review of Board decisions on the grounds of CUE are adjudicated pursuant to regulations published by the Department of Veterans Affairs (VA) at 38 C.F.R. §§ 20.1400-1411 (2016). Pursuant to applicable regulations, CUE 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. 38 C.F.R. § 20.1403(a). Thus, even where the premise of error is accepted, if it is not clear that a different result would have ensued, then the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). Generally, CUE is present when 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. Id. Review for CUE in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b)(1). Examples of situations that are not CUE include a changed diagnosis, i.e., a new diagnosis that “corrects” an earlier diagnosis considered in the Board decision; the Secretary’s failure to fulfill the duty to assist; and, allegations based on improper evaluation of evidence, i.e., a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d)(1-3). Moreover, CUE 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. 38 C.F.R. § 20.1403(e). In order to prevail in a motion for CUE, the following three prongs 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 existing at that time were incorrectly implied; (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70 (2008); Russell v. Principi, 3 Vet. App. 310, 314 (1992). It is enormously important for the Veteran to understand that the standard for CUE is very high. The Court has held that, under the heightened pleading requirements set forth in Fugo v. Brown, 6 Vet. App. 40 (1993), an alleged CUE must be the “kind of error... that if true, would be CUE on its face.” A claimant must do more than cite a “laundry list” of laws and regulations and the doctrines they express. A mere disagreement with how the facts were evaluated does not constitute an allegation which is adequate to raise a CUE claim. Luallen v. Brown, 8 Vet. App. 92 (1995); Damrel v. Brown, 6 Vet. App. 242 (1994). The benefit of the doubt provisions of 38 U.S.C. § 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. Moreover, VA’s breach of a duty to assist cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999). The Veteran first submitted his claim for service connection for headaches on August 14, 1986. The Veteran’s claim was denied on April 8, 1987. The decision was upheld in a Board of Veterans’ Appeal decision dated April 20, 1989. This decision was not appealed and became final. The Veteran refiled a claim for headaches on March 27, 2003. A March 18, 2008 Board of Veterans’ Appeals remand decision deemed the issue of headaches had been reopened. A subsequent February 1, 2009 rating decision granted service connection for headaches from the reopened claim date of March 27, 2003. The Veteran alleges that he is entitled to benefits for his headaches complaints beginning August 1986, when he first filed his application for service connection for headaches. In their Appellate Brief, the Veteran’s representative argues that the Veteran’s allegations were not accorded sufficient weight in the 1987 rating decision. The representative also argues that the basis of the 1987 decision was a subjective medical opinion which did not take into account the Veteran’s complaints. When the Board decided its April 1989 decision, the claims folder contained service treatment records as well as records concerning a motor vehicle accident and the Veteran’s hospitalization in October 1973. Further, the Veteran provided testimony at an October 20, 1987 hearing during which he put forth his subjective allegations regarding his headaches. The Board also considered available post-service treatment records, including a VA examination in October 1986 where the examiner opined that the Veteran’s headaches were related to stress at his job, a report that did not support this claim. In light of all available evidence, the Board found that the Veteran’s complaints of headaches during service were acute, transitory and that they subsided without a residual disability. The Veteran’s representative contends that the VA did not fulfill its duty to assist in obtaining records prior to the April 1989 decision. This contention is without merit. The record contains adequate attempts to obtain service treatment records and the record before the Board in 1989 was appropriately developed. Documents that became available later and led to the granting of service connection for headaches in a February 2009 rating decision consisted of a 2008 VA examination and not records that could have been before the Board in 1989. Furthermore, as noted above, even had the VA breached the duty to assist, that cannot form the basis for a claim of CUE. As noted by his representative in their brief, the Veteran’s primary contention is a failure to take into account the Veteran’s own reports regarding his headaches. The Veteran’s subjective allegations were appropriately considered by the Board and there is no indication that the 1986 VA Examination was deficient. The Board finds the Veteran’s contentions to be nothing more than a disagreement with the way the Board weighed the evidence in the prior decision. (Continued on the next page)   While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to March 27, 2003 for the grant of service connection for headaches. Therefore, the claim must be denied. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel