Citation Nr: 18141259 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-44 679 DATE: October 10, 2018 ORDER The motion to revise or reverse based on clear and unmistakable error (CUE) a May 14, 1987 decision of the Board of Veterans' Appeals (Board) that denied service connection for retinitis pigmentosa is dismissed without prejudice to refiling. FINDINGS OF FACT 1. In a May 14, 1987 decision, the Board denied service connection for retinitis pigmentosa. The Moving Party was provided with a copy of the decision. The Moving Party did not appeal the adverse decision to the United States Court of Appeals for Veterans Claims and it is therefore final. 2. The Moving Party has advanced no specific claim of CUE in the May 14, 1987 Board decision. CONCLUSION OF LAW The motion to revise or reverse the May 14, 1987 Board decision denying service connection for retinitis pigmentosa is dismissed without prejudice to refiling. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Whether a May 14, 1987 Board decision denying service connection for retinitis pigmentosa should be revised or reversed based on CUE. In a May 14, 1987 decision, the Board denied service connection retinitis pigmentosa. The Moving Party was provided with a copy of the decision. The Moving Party did not appeal the adverse decision to the United States Court of Appeals for Veterans Claims; the decision is therefore final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20201, 20.302, 20.1103. In November 2013, VA received a motion for review and revision based on CUE in the Board’s May 14, 1987 decision denying service connection for retinitis pigmentosa. See Third Party Correspondence and VA Form 21-4138 (November 2013). The Board concludes that the Moving Party has advanced no specific claim of CUE in the May 14, 1987 Board decision and, therefore, the claim must be dismissed without prejudice to refiling. The relevant law provides that 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. 38 C.F.R. § 20.1404. Under 38 C.F.R. § 20.1409(c), the Board’s regulations specify that a moving party has only one opportunity to challenge a Board decision based on CUE. 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. 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. § 5109A; 38 C.F.R. § 3.105; 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 v. Shinseki, 695 F.3d 1257, 1258 (2012). In addressing the requirement of specificity in claims of CUE, the United States Court of Appeals for Veterans Claims has clarified that: … 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 (2008). Here, the record shows that, in its May 1987 decision, the Board concluded that retinitis pigmentosa is a congenital or developmental defect and, as such, not a disease or injury within the meaning of applicable legislation providing compensation benefits (citing 38 C.F.R. § 3.303(c)); that a chronic acquired disorder of the eye was neither incurred in nor aggravated by service (citing 38 U.S.C. § 310 and 38 C.F.R. §§ 3.102, 3.303(c)); and that the rating action in June 1972 denying service connection for eye disability became final, a new factual basis upon which to base an allowance of service connection for retinitis has not been presented (citing 38 U.S.C. § 4005 and 38 C.F.R. §§ 3.102, 3.104(a), and 19.129(a)). In its May 1987 decision, the Board discussed the claimant’s contentions including his representative’s reference to a General Counsel Opinion dated in March 1985, a favorable Board decision involving a different claimant, and hearing testimony. The Board further discussed the evidence including service treatment records (STRs). Notably, the 1970 service enlistment examination included a history of eye trouble and a 1971 STR showed retinitis pigmentosa; a Medical Board report shows that retinitis pigmentosa existed prior to service and was not aggravated by service. Also, the Board considered VA medical records along with supporting lay statements and testimony. Testimony included the theory that exposure to chemical solvents in service was related to his eye disorder. In November 2013, VA received a written motion indicating there was CUE in the May 1987 Board decision. In reviewing the Moving Party’s written statements, the Board is unable to ascertain the specific nature of the CUE claim. The Moving Party identifies no specific error in the Board’s May 1987 decision denying service connection for retinitis pigmentosa. The Moving Party suggests that the Board misunderstood the General Counsel Opinion “1-85” and proceeded to argue that service connection is warranted on a direct basis. Because the Moving Party’s pleadings do not specifically identify any alleged error or errors in the Board’s May 1987 decision as to either facts or law, the Board concludes that the Moving Party’s motion to reverse or revise the Board’s May 1987 decision lacks the necessary specificity as required to constitute a valid motion for revision or reversal based on CUE. The Board finds that it would be prejudicial to the Moving Party for the Board to accept as legally sufficient a claim which is defined by law as not legally sufficient and which would foreclose any opportunity for the Moving Party to raise a legally sufficient claim. Therefore, the motion must be dismissed without prejudice to refiling. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Skow, Counsel