Citation Nr: 18156645 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-22 070 DATE: December 11, 2018 ORDER The notice of disagreement (NOD) to the May 21, 2010, rating decision received on September 2, 2011, was not timely, and the appeal is denied. The motion to revise the May 2010 rating decision that denied entitlement to service connection for a back injury due to clear and unmistakable error is denied. FINDINGS OF FACTS 1. An NOD dated August 24, 2011, and received September 2, 2011, was sent in response to a May 21, 2010, rating decision that denied service connection for a back injury. 2. Since the Veteran’s September 2011 NOD was not timely, the May 2010 rating decision that denied service connection for a back injury is final. 3. At the time of the May 2010 administrative decision, the correct facts as they were known at the time were before the RO, and there is no showing the RO misapplied the existing statutory or regulatory provisions with regard to whether the claim for service connection for a back injury should be denied. CONCLUSIONS OF LAW 1. The Veteran’s NOD, dated August 24, 2011, and received on September 2, 2011, was untimely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302, 20.303, 20.305(a) (2017). 2. The May 2010 RO administrative decision does not contain a clear and unmistakable error. 38 U.S.C. §§ 5109A, 7104 (2012); 38 C.F.R. § 3.105 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to December 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran requested a hearing before the Board but did not appear for a hearing scheduled in March 2017. The record does not reflect he notified VA of a good cause for not appearing to the March 2017 hearing. Furthermore, a hearing was scheduled for October 17, 2018, and the Veteran did not appear. The record does not reflect he notified VA of a good cause for not appearing to the October 2018 hearing. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (d) (2017). 1. The NOD to the May 21, 2010, rating decision received on September 2, 2011, was not timely and the appeal is denied. Under 38 U.S.C. § 7105 (a), an appeal to the Board must be initiated by an NOD and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case (SOC) is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. 38 U.S.C. § 7105 (d)(3) provides that “questions as to timeliness or adequacy of response shall be determined by the Board of Veterans’ Appeals.” See also VAOPGCPREC 9-99, 64 Fed. Reg. 52376 (1999). A claimant (or his representative) must file an NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302 (a). The absence of filing of a timely substantive appeal, as opposed to a NOD, is not a bar to the Board’s jurisdiction; therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. If an NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.200, 20.201, 20.302. Therefore, an untimely filed NOD is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In the present case, the RO issued a decision on May 21, 2010, that denied service connection for a back injury. A notification letter dated May 25, 2010, notified the Veteran of the decision and his appellate rights. Under a bolded heading entitled “What You Should Do If You Disagree With Our Decision,” the letter advised the Veteran that he had “one year from the date of this letter to appeal the decision.” Also attached was VA Form 4107, “Your Rights to Appeal Our Decision,” which explained the Veteran’s right to appeal. Therefore, the Veteran had until May 21, 2011 to write and tell the RO why he disagreed with the decision. See 38 C.F.R. § 20.302 (a). In correspondence received by VA on September 2, 2011, the Veteran indicated he disagreed with the decision regarding the denial of his claim for service connection for a back injury. However, the Veteran’s NOD was received over one year after the May 2010 decision. On March 19, 2014, the RO issued an SOC regarding whether a timely NOD was received as to the May 2010 decision that denied service connection for a back injury, and the Veteran perfected an appeal as to this issue of the timeliness of the NOD on May 19, 2014. The Board finds the Veteran did not file a timely NOD with the May 2010 decision denying service connection for a back injury. Consequently, the appeal as to the timeliness of the NOD is denied. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302. Finally, since the Veteran did not file a timely NOD regarding his back injury, the Board does not have jurisdiction over that issue. 2. The motion to revise the May 2010 rating decision that denied entitlement to service connection for a back injury due to clear and unmistakable error is denied. In addition, the Veteran contends there was a clear and unmistakable error in the RO’s May 2010 determination. In particular, in a letter dated in September 2012, the Veteran’s representative alleges that because Dr. D.A.S.’s statement dated September 3, 2009, showed the Veteran’s condition could have as likely as not been caused or aggravated by the Veteran’s active duty service time because there was no other evidence to specifically contradict Dr. D.A.S.’s finding of service connection, the May 2010 rating decision contained a clear and unmistakable error. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. The May 2010 rating decision was final because the Veteran did not file a timely NOD. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error. Id. at 43. The Court noted that CUE 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. Id. The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior determination: “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 the 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, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has also held allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. CUEs “are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Id. In the May 2010 rating decision, the RO denied service connection for a back injury. The RO found there was no evidence to show the Veteran’s back condition was related to his active service. The RO did not obtain a VA medical opinion. The Board concludes that clear and unmistakable error in the May 2010 decision are not shown. A review of the evidence clearly demonstrates there was no failure by the RO to apply the correct statutory and regulatory provisions to the correct and relevant facts. In particular, the competent and objective medical evidence showed normal clinical findings on separation. There is no basis to find that it was unreasonable for the RO to have determined a back disorder was not shown during service. Further, an allegation that a previous adjudication has improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. The Veteran must assert more than a disagreement as to how the facts were weighed or evaluated. In sum, the Board finds the correct laws and facts were before the RO in May 2010, and the decision was supported by the record and law in existence at the time. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, there is simply no basis upon which to find CUE in the RO decision. Furthermore, the benefit-of-the-doubt doctrine is inapplicable to CUE motions, and this CUE motion must therefore be denied. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE claim because the nature of such a claim is that it involves more than a disagreement as to how the facts were weighed or evaluated). (Continued on the next page).   Accordingly, the Veteran’s claim that the May 2010 rating decision was clearly and unmistakably erroneous must therefore be denied. 38 C.F.R. § 3.105 (a). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck