Citation Nr: 1807143 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 17-03 443A ) DATE ) ) THE ISSUE Whether the September 1988 Board of Veterans' Appeals (Board) decision that denied service connection for a respiratory disorder should be revised or reversed on the basis of clear and unmistakable error (CUE). [The issues of whether there is CUE in a June 2003 rating decision that granted service connection for costochondritis with an effective date of December 20, 2001; entitlement to an increased rating for costochondritis; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) are addressed in a separate decision.] APPEARANCE AT ORAL ARGUMENT The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The moving party in this case is a Veteran who served on active duty from October 1978 to October 1986. In a September 1988 decision, the Board denied the Veteran's claim for service connection for a respiratory disorder. The moving party has moved the Board to revise this decision on the basis that the decision was clearly and unmistakably erroneous pursuant to 38 U.S.C. § 7111 (2012) and 38 C.F.R. §§ 20.1400 (2017). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board finds that such testimony, reduced to writing in a transcript that has been associated with the record, satisfies the procedural requirements for the filing of a CUE claim. 38 C.F.R. § 20.1404. The Board notes that the current CUE motion has been assigned a different docket date than the Veteran's appeal with regard to his claims as to whether there was CUE in a June 2003 rating decision that granted service connection for costochondritis with an effective date of December 20, 2001; entitlement to an increased rating for costochondritis; and entitlement to a TDIU. See 38 C.F.R. § 20.1405(a). Regardless, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). FINDINGS OF FACT 1. In a final September 1988 decision, the Board denied service connection for a respiratory disorder. 2. In denying service connection for a respiratory disorder, the September 1988 Board decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The September 1988 Board decision that denied service connection for a respiratory disorder is final. 38 U.S.C. § 4004(b) (1982) [38 U.S.C. § 7104(b) (2012)]; 38 C.F.R. § 19.104 (1988) [38. C.F.R. § 20.1100 (2017)]. 2. The criteria for the revision or reversal of the September 1988 Board decision that denied service connection for a respiratory disorder on the basis of CUE have not been met. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1401, 20.1403, 20.1404 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the notification and duty to assist provisions of the VCAA are not applicable to claims of clear and unmistakable error in prior Board decisions. 38 C.F.R. § 20.1411(c), (d); Livesay v. Principi, 15 Vet. App. 165 (2001). Clear and unmistakable error 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 there were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). In general, 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 C.F.R. § 20.1403(c). 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. All final Board decisions are subject to revision except: (1) decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and (2) decisions on issues which have subsequently been decided by a court of competent jurisdiction. 38 U.S.C.§ 7111; 38 C.F.R. § 20.1400. Unless otherwise specified, the term "issue" means a matter upon which the Board made a final decision. As used in the preceding sentence, a "final decision" is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision. 38 C.F.R. § 20.1401. Only final decisions of the Board are subject to appeal to the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7266. Relevant to this appeal, the Court was not established until November 18, 1988. Once the Court was created, its jurisdiction was limited to those appellants who had filed notices of disagreements at VA on or after November 18, 1988. In this case, the Veteran filed his notice of disagreement in March 1987; accordingly, the right to appeal to the Court did not exist in this case. The general requirements for filing a motion for CUE includes the name of the Veteran, the applicable VA file number, the date of the Board decision to which the motion relates, and the issue or issues to which the motion pertains. 38 C.F.R. § 20.1404(a). Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. Id. In addition to the general requirements for filing a motion for revision of a decision based on CUE as noted above, there are also specific requirements for making allegations of CUE that are set forth under 38 C.F.R. § 20.1404(b). Such requirements include that the motion must set forth clearly and specifically the alleged CUE, 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, nonspecific 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 under this subpart. Id. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE 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, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, 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. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, supra. The Veteran contends that the Board's September 1988 decision is clearly and unmistakably erroneous insofar as it denied service connection for a respiratory disorder. Specifically, he alleges that the Board should have broadly interpreted his claim for a respiratory disorder to encompass costochondritis, which he was treated for in service, and granted service connection for such disorder at that time. As an initial matter, the Board finds that the September 1988 decision is final as reconsideration of such decision was not requested or ordered, and no relevant, non-duplicative service department records have been received since such decision. 38 U.S.C. § 4004(b) (1982) [38 U.S.C. § 7104(b) (2012)]; 38 C.F.R. § 19.104 (1988) [38. C.F.R. § 20.1100 (2017)]. At the time of the September 1988 decision, relevant laws and regulations with respect to an award of service connection included the following: Service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 331. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. A reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well-grounded. 38 C.F.R. §3.102. Pertinent evidence before the Board at the time of its September 1988 decision included the following: service treatment records (STRs) noting reports of chest pain, a January 1987 examination report, and lay statements from the Veteran. In its September 1988 decision, the Board denied service connection for a respiratory disorder. In this regard, the Board considered the Veteran's STRs, which showed he sought treatment for chest pain, upper respiratory infections, and the like, but his chest x-rays were essentially negative. The Board also noted that, in October 1978, a purified protein derivative was positive for tuberculosis, but such was not indicative of the presence of a disease entity. Upon consideration of the foregoing, the Board found that the Veteran's in-service episodes of chest pain and respiratory problems were acute and transitory and did not result in residual disability, and that his claimed respiratory disorder was not currently demonstrated by objective clinical evidence. Consequently, the Board denied service connection for a respiratory disorder. In reaching such determination, the Board noted the Veteran's in-service treatment, but found that the post-service clinical findings showed no current respiratory disorder. The Board, after resolution of all reasonable doubt in the Veteran's favor, was not persuaded by the current subjective findings that the Veteran suffered from a respiratory disorder that had its onset during, or was otherwise related to, his period of active service. As an initial matter, the moving party does not contend, and the record does not show, that the Board did not cite the relevant, applicable law in the September 1988 decision. Instead, the moving party's contention centers on how the Board evaluated the evidence pursuant to such legal authority. Specifically, the moving party contends that the Board should have interpreted his claim for a respiratory disorder due to his alleged in-service exposure to asbestos on ships as a claim for service connection for costochondritis and granted service connection. It is well established that assertions of CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See Fugo, supra. Additionally, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, in its September 1988 decision, the Board clearly acknowledged the Veteran's various diagnoses, to include his in-service reports of chest pain, but found that they stemmed from subjective complaints of pain only as they were consistently uncorroborated by clinical findings (i.e., x-ray diagnostics). See Board decision, p. 5 (September 1988). Furthermore, the Board considered the Veteran's lay reports, but determined a "chronic respiratory disorder [was] not present during service, nor [had] such disorder[] been medically demonstrated post service." Ultimately, where, as here, the moving party's assertion amounts to a disagreement with regard to the manner in which the Board weighed and evaluated evidence, the moving party's assertion cannot support a finding of CUE. Additionally, at the time of the September 1988 decision, the Board was permitted to rely on its own medical judgment to support its conclusions. See MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010); see also Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (applying this principle to a pre-Colvin Board decision). Cf. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (Board panels may consider only independent medical evidence). In this regard, a medical member of the Board participated in the September 1988 determination and, as a signatory to the determination, affirmed his agreement with the findings that the in-service episodes of chest pain experienced by the Veteran resolved without current residual effects and that the Veteran's claimed chronic respiratory disorder was not then demonstrated by objective clinical evidence. Notably, the medical member did not attribute the Veteran's in-service reports of chest pain to costochondritis and was fully capable of expanding the Veteran's claim to include such if he thought the evidence warranted it. Furthermore, the medical member's findings are consistent with the facts known at that time, i.e., a consistent pattern of subjective complaints of chest pain paired with normal x-ray findings during service. To the extent the September 1988 determination is alleged to be contrary to the medical evidence of record, the Board finds that the September 1988 Board decision relied on the medical judgment of the medical member in deciding the claim. Thus, CUE is not shown on this basis. Finally, the Board notes the moving party has implied that the September 1988 Board decision did not consider all of the Veteran's STRs as he has routinely resubmitted copies of his May 1982 in-service diagnosis of costochondritis. Significantly, the May 1982 STR was included in the STRs in possession of VA at the time of the September 1988 Board decision. In fact, the Board actually discussed the exact record the Veteran contends proves his entitlement to service connection. Therefore, as the Board possessed the Veteran's complete STRs in September 1988, it cannot be said that the correct facts, as they were known at that time, were not before the Board. In sum, the Board finds that the correct facts as they were known at the time of the September 1988 decision were before the Board, and the statutory or regulatory provisions extant at that time were correctly applied. Furthermore, the Board's September 1988 decision that denied service connection for a respiratory disorder was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim. In this regard, even if the Board had expanded the Veteran's claim for a respiratory disorder to include costochondritis, given the lack of objective findings on x-ray, the lack of a current diagnosis, and lack of diagnosis of a chronic disorder related to such, the claim would still have been denied. Thus, the 1988 decision would not have been manifestly different if the claim was expanded to include consideration of service connection for costochondritis. In the absence of any CUE in the September 1988 Board decision, the moving party's motion for revision or reversal of that decision on the basis of CUE must be denied. ORDER The motion for revision or reversal of the September 1988 Board decision that denied service connection for a respiratory disorder on the basis of CUE is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs