Citation Nr: 19166229 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 19-20 207 DATE: August 27, 2019 ORDER As there was clear and unmistakable error (CUE) in a May 2016 Board decision granting a 20 percent disability rating for degenerative disc disease (DDD) of the lumbar spine effective from February 27, 2008, the decision is revised to reflect the award of a 20 percent rating for DDD of the lumbar spine effective from February 28, 2007.   FINDING OF FACT The May 2016 Board decision clearly and unmistakably intended to grant a 20 percent disability rating for DDD of the lumbar spine effective from February 28, 2007. CONCLUSION OF LAW The criteria for revising the May 2016 Board decision that granted a 20 percent disability rating for DDD of the lumbar spine effective from February 27, 2008, on the grounds of CUE, have been met to the extent the Board’s decision is revised to grant the 20 percent rating effective from February 28, 2007. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to July 1969. This matter is before the Board as an original action on an April 2019 motion of the Veteran in which he alleges CUE in a May 2016 Board decision. Several other issues, as last remanded in a June 2008 Board decision, are not included within the scope of the instant decision and will be the subject of a later Board decision. CUE Whether there was CUE in a May 2016 Board decision granting a 20 percent disability rating for DDD of the lumbar spine effective from February 27, 2008 As relevant, the May 2016 Board decision issued an order granting a 20 rating for DDD of the lumbar spine effective from February 27, 2008. In the April 2019 CUE motion, the Veteran’s attorney representative argued that there was a typographical error in the Board’s order. According to the attorney, the Board granted a 20 percent rating for the entire period of appeal, which began on February 28, 2007. Thus, the grant from February 27, 2008, should be considered CUE, and the earlier date should be awarded. A. Applicable Law 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. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting “manifestly changed the outcome” language in Russell). 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). B. Discussion The Board’s order mistakenly granted the 20 percent rating from February 27, 2008. The Board’s conclusion of law also identified February 27, 2008. However, reasonable minds cannot disagree that these were typographical errors. The Board clearly and unmistakably intended to grant the 20 percent rating from February 28, 2007. Several factors make this outcome clear. First, the Board identified the date of receipt of the Veteran’s increased rating claim as February 28, 2007. This shows that the Board was considering the appeal from that date. At this point, the obvious similarity between the two dates, February 28, 2007, and February 27, 2008, gives rise to the inference that the Board simply transposed the numbers. Relatedly, the Board identified no material events, such as a VA examination or any pleading, as having been filed on February 27, 2008. The Board cited a VA examination from June 2008, but only as further supporting evidence. This shows that there was simply no basis to assign the date from February 27, 2008, as that date had no factual or procedural significance. Second, the Board cited an April 2007 VA examination as “support for assignment of the next-higher 20 percent evaluation[.]” By inference, the Board would not have cited an earlier VA examination to support the assignment of the higher rating from a later date. The law is clear that an effective date for an increase shall be assigned from the date of claim or when an increase is factually ascertainable, whichever is later. If the April 2007 VA examination was the first date showing a factually ascertainable increase, as was the clear implication in the decision, the Board would have granted the 20 percent rating from the date of that examination and not an arbitrary date six months later in February 2008. See, e.g., 38 C.F.R. § 3.400(o)(2); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). (Continued on the next page)   Third, the Board stated in its reasons and bases that “the Board finds that a rating of 20 percent for low back disability from February 28, 2007 through July 11, 2011 is warranted.” (Emphasis added.) The Board made this statement as the summary to its discussion establishing why the 20 percent rating was warranted. This shows that the Board actually intended to grant the rating from that date and, again, simply transposed the numbers in the order. Collectively, these facts of the decision show that the order was a typographical error where the Board granted the 20 percent rating from February 27, 2008, instead of February 28, 2007. For these reasons, the Board finds that there was CUE in the Board’s decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. Accordingly, the motion to revise the decision is granted and an effective date of February 28, 2007 is awarded for a 20 percent rating for DDD of the lumbar spine. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.