Citation Nr: 18145573 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 18-19 174 DATE: October 29, 2018 ORDER The motion for reversal or revision of the March 19, 2007 Board decision that denied a claim of entitlement to service connection for a right ankle and foot disability is denied. FINDINGS OF FACT 1. In a final decision dated March 19, 2007, the Board of Veterans’ Appeals (Board) denied a claim of entitlement to service connection for a right ankle and foot disability. The moving party was provided with a copy of the decision and did not appeal the Board decision to the United States Court of Appeals for Veterans Claims (Court). 2. The moving party has not alleged an error of fact or law in the March 19, 2007, Board decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. CONCLUSION OF LAW Clear and unmistakable error (CUE) in the Board’s March 19, 2007, decision that that denied a claim of entitlement to service connection for a right ankle and foot disability has not been established. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active service from September 2001 to April 2003. This matter is currently before the Board on the moving party’s February 2018 motion for revision or reversal on the grounds of CUE in the March 19, 2007 Board decision that denied a claim of entitlement to service connection for a right ankle and foot disability. In February 2018, the Veteran revoked his Power of Attorney, which had appointed the Veterans of Foreign Wars of the United States (VFW) as his representative. The Board finds that the Veteran properly revoked VFW’s representation. See 38 C.F.R. § 14.631(f)(1). The Veteran has not filed a VA Form 21-22 or VA Form 21-22a designating another individual or accredited service organization as his representative. He therefore proceeds with this motion pro se. The issue of CUE in an October 2015 rating decision that denied entitlement to service connection for left acquired flatfoot and left achilles tendon enthesopathy has been raised by the record in the February 2018 motion for revision or reversal on the grounds of CUE in the March 19, 2007 Board decision, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 1. Whether there was CUE in a March 19, 2007, Board decision that denied a claim of entitlement to service connection for a right ankle and foot disability. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must 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. 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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. 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. 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. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass 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. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a March 19, 2007, Board decision that denied a claim of entitlement to service connection for a right ankle and foot disability. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. Specifically, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The moving party essentially alleges that a July 2003 VA examination relied upon by the Board in the March 19, 2007 decision was inadequate and “substantially incomplete due to the absence of the legally mandated DeLuca criteria.” The moving party contends that, had such error not been committed, the March 19, 2007 Board decision manifestly would have granted service connection for his right ankle and foot disability. This argument can be taken one of two ways, first, as a disagreement with how the facts were weighed and evaluated, which, again, is explicitly not CUE. See 38 C.F.R. § 20.1403(d)(3). Second, this advanced reliance on a claimed inadequate VA examination can also be interpreted as an argument that VA failed in its duty to assist. As discussed above, VA’s failure in the duty to assist cannot constitute CUE. 38 C.F.R. § 20.1403(d); Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Review of the record reflects no other significant CUE arguments raised by the Veteran. Therefore, because the argument presented by the Veteran amount to nothing more than a disagreement with how the facts were weighed and evaluated and/or an argument that VA failed in its duty to assist, which are explicitly not CUE, the Board finds there was no CUE in the March 19, 2007 Board decision denying service connection for a right ankle and foot disability. Based on the foregoing, moving party has failed to show that the March 19, 2007, Board decision contains an error, of fact or of law, that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Hence, the Veteran’s CUE motion must be denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel