Citation Nr: 18144601 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-24 075 DATE: October 25, 2018 ORDER The motion to revise the November 1978 decision which denied the claim for service connection of recurrent dislocation of the left shoulder is denied. FINDING OF FACT A final November 1978 decision denied a claim for service connection of recurrent dislocation of the left shoulder. There has been no written motion or valid argument of clear and unmistakable error (CUE) advanced as to that decision. CONCLUSION OF LAW The pleading requirements for a motion for revision of a decision based on CUE have not been met. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 3.105(a) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. Clear and Unmistakable Error In September 2014, the Veteran asserted that there was clear and unmistakable error (CUE) in a November 1978 rating decision which denied the Veteran service connection for a recurrent left shoulder dislocation. Unappealed rating decisions are final. 38 U.S.C. § 7105. A final rating decision is not subject to revision on the same factual basis except by appellate authorities, or on the basis of CUE. 38 C.F.R. § 3.104(a). If the evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Finally, the Board notes that a disagreement with how the facts were weighed or evaluated is not adequate to raise a valid argument of CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In his September 2014 statement in support of claim, which alleged CUE regarding the November 1978 rating decision, the Veteran stated that he was not contending his left shoulder condition pre-existed service. He argued that the fact that he was found fit for service upon his induction in December 1970 and four months later was determined unfit for service demonstrated service connection for his recurrent left shoulder dislocation by way of aggravation. He further argued that he is currently service connected for a left shoulder disability which related to his same period of active service and that the denial of the claim in 1978 clearly contradicts the reasoning provided in the November 1978 rating decision. (Continued on the next page)   Based on the foregoing, the Board finds that, in this case, the Veteran has not raised a valid claim of CUE. The Veteran’s arguments regarding the November 1978 rating decision are essentially claims that the RO improperly weighed the evidence, which does not support a finding of CUE. Moreover, the Veteran’s general allegation that the evidence supports an effective date back to his original claim cannot be construed as clear and specific arguments for purposes of a CUE motion. Therefore, to date, the procedural requirements for a CUE motion regarding the November 1978 decision, including the filing of a written motion, have not been met by the Veteran or his representative. Upon review, the Board finds that the September 2014 CUE motion was nonspecific and did not set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the November 1978 decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Therefore, his appeal with respect to CUE must be dismissed. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel