Citation Nr: 20008441 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 15-15 878 DATE: January 31, 2020 ORDER The February 12, 2018, motion to revise a January 27, 2014, decision of the Board of Veterans’ Appeals (Board) on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. In a decision dated January 27, 2014, the Board denied a claim for service connection for a urinary disorder, variously claimed as urethritis and bladder infection. 2. Based on the record and law before the Board at the time of the January 2014 decision, the Board did not make an error of fact or law which, absent that error, it is absolutely clear that the outcome would have manifestly changed and that the claim for service connection for a urinary disorder would be granted. CONCLUSION OF LAW The criteria for revision or reversal of the January 27, 2014, Board decision that denied service connection for a urinary disorder on the basis of CUE have not been met. 38 U.S.C. §§ 1111, 5109A, 7111; 38 C.F.R. §§ 20.1400-1411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active duty service from January 1967 to May 1967 and from December 1990 to May 1991. This matter is currently before the Board on the motion of the Veteran’s representative received in February 2018. In July 2018, the Board dismissed a motion for revision based on CUE of the January 2014 decision that was received in correspondence in March 2014. The Veteran appealed that dismissal to the United States Court of Appeals for Veterans Claims (Court), which issued a July 2019 order granting a Joint Motion for Remand (JMR) that vacated and remanded the Board’s dismissal. In the JMR, the Board was instructed to determine whether the motion received from the Veteran’s representative in February 2018 satisfied the pleading requirements for a motion to revise the January 2014 Board decision on the basis of CUE. Pleading Requirements 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 Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to revise a prior final Board decision 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). As noted above, the record contains a February 2018 motion for revision of the January 2014 Board decision on the basis of CUE. It identifies the Board decision in question, is signed by the Veteran’s representative, and sets forth a clear argument that, among other assertions of error, that the January 2014 Board decision failed to appropriately consider secondary service connection and failed to consider all evidence of record. Absent those failures, the representative contended that the outcome would have bene manifestly different. As intimated in its earlier dismissal from 2018, the record also contains hundreds of documents submitted by the Veteran in which references to CUE in the January 2014 decision were made. However, those voluminous and repetitive records, which in many occasions were comprised of handwritten annotations of a variety of documents sent to the Veteran by VA in the course of his various claims, did not meet the specificity requirements for a motion for revision as they lacked the clear and specific arguments required of a motion for CUE. In contrast to those numerous submissions and correspondence, the February 2018 motion clearly, concisely, and specifically sets forth an argument for revision based on CUE in accordance with the pleading requirements set forth at 38 C.F.R. § 20.1404. As such, the Board will consider that motion on its merits. Legal Standard 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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). Analysis The arguments set forth in the February 2018 motion can largely be characterized in two separate ways. The motion first argues that the Board had “erroneously failed to consider all of the evidence of record,” specifically citing evidence that the representative contended showed that the Veteran was a combat veteran. The representative further argued that the Veteran had provided personal and lay evidence in support of his contentions as well as a private medical opinion that indicated urinary problems were due to his period of service. The next argument is an implicit contention that the Board failed to adequately consider whether the urinary disorder at the heart of the Veteran’s claim could have been caused or aggravated by his service-connected fibromyalgia. With respect to the motion’s first set of arguments, the Board cannot find that they amount to clear and unmistakable error sufficient to reverse the January 2014 Board decision. In so finding, a brief recitation of the evidence and reasoning of that decision is appropriate. In its January 2014 decision, the Board first determined that the Veteran had diagnosed urinary tract problems such that the provisions of service connection relating to service in the Persian Gulf War set forth at 38 C.F.R. § 3.317 were not warranted. Primarily citing the results of a February 2013 VA compensation examination report, the Board observed that the Veteran was diagnosed with urethral strictures that were productive of numerous genitourinary symptoms. The Board also noted that the service treatment records (STRs) did not contain any complaints or diagnoses of any urinary disorder during service and that there was a multi-year gap between service and the first contemporaneous report of genitourinary symptoms. It further determined that the Veteran was not competent to provide an opinion regarding the complex medical question of the etiology of his current bladder disability. Given this evidence, the Board turned to the opinion evidence of record. It explained that the VA compensation examiner had provided a clear medical opinion that the Veteran’s urinary problems were likely not due to service and instead were likely due “solely to his nonservice-connected prostate cancer.” The Board now finds that that description of the examination report could be considered to be somewhat inaccurate. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The physician explained that the Veteran had had prostate cancer in 2004 and the subsequent therapy caused him to have urethral strictures and urinary incontinence. It was stated that “all the” symptoms started since 2004. The Board does not view this evidence as explicitly stating that the Veteran’s symptoms were “solely” due to his nonservice-connected prostate cancer and the treatment the Veteran received for that disability. However, the use of the word “all” by the examiner could lead a reasonable reader of the report to the conclusion that the Veteran’s urinary symptoms were more likely due to prostate cancer than any other cause. The Board also notes that although the February 2018 motion argues that the Board erred by failing to consider the lay reports of in-service urinary symptoms and the numerous lay statements submitted by the Veteran, the March 2013 VA examination report does indicate that the examiner reviewed the Veteran’s claims file, which included those lay assertions. Therefore, in arriving at the negative nexus opinion, those statements were implicitly considered by that examining physician. Indeed, the Board referenced 38 U.S.C. § 1154, noting the law concerning consideration of the circumstances of the Veteran’s military service. Given a competent opinion from the examiner regarding this issue implicitly considered that evidence, the Board cannot find that it is absolutely clear, as is required by the governing regulations, that there was an outcome-determinative error of fact or law by the Board in its discussion of the lay evidence submitted by the Veteran. Rather, that argument appears to more closely resemble a challenge to how the Board weighed the evidence of record, which cannot be CUE. See 38 C.F.R. § 20.1403(d). A similar analysis is warranted with respect to the argument that the Board erred by failing to consider the positive private nexus opinion. In its January 2014 decision, the Board explicitly considered the January 2009 private physician’s letter and found it to be of less probative value than the opinion of the VA examiner. The Board cannot say that the January 2014 analysis, which noted that the private opinion appeared to be based largely on the Veteran’s own reported medical history and failed to mention the apparently pertinent medical history of prostate cancer, was clearly and unmistakably in error. Rather, any contention that the Board committed CUE by failing to consider that private examiner’s opinion amounts to another argument that the Board improperly weighed the evidence. This cannot be CUE. The February 2018 motion also contended that the Board erred by failing to appropriately consider the proposition of secondary service connection. The Board also finds that this argument cannot succeed. The Board did explicitly consider the provisions of secondary service connection in its January 2014 decision. However, in reading the 2013 VA examination report to attribute the Veteran’s urinary symptoms solely to his nonservice-connected prostate cancer and cancer treatment, it determined that there was no link between his service-connected fibromyalgia and his urinary symptoms. In support of his claim, the Veteran has on many occasions submitted a separate VA examination report from August 2009 relating to fibromyalgia. In that report, the examiner identified numerous “current symptoms” of fibromyalgia. Among these symptoms, the examiner stated the Veteran was experiencing dysuria. In its January 2014 decision, the Board failed to discuss this potentially positive evidence. To be considered CUE, however, the regulations require that the outcome of the decision would have been manifestly different but for the error and that such a different outcome must be absolutely clear. Here, the Board finds that it is reasonable to read the 2013 VA examination report to suggest that the symptoms that the Veteran experienced at the time were related only to the Veteran’s nonservice-connected prostate cancer and treatment. Moreover, as explained above, the 2013 examiner stated that a review of the claims file had been conducted, which included the August 2009 fibromyalgia examination report. In sum, the record before the Board in January 2014 contained some evidence that urinary symptoms may have been caused or related to his service-connected fibromyalgia. However, the record also contained a competent examination report from a physician specifically focused on the Veteran’s genitourinary symptoms who had also conducted a review of the claims file, which included the 2009 fibromyalgia report. It is not implausible to read this evidence as a rejection of the contention that fibromyalgia had any connection to the Veteran’s urinary symptoms, particularly in light of the 2013 examiner’s characterization of the medical history of those symptoms. As such, the Board finds that the argument that the Board improperly considered secondary service connection also amounts to an argument concerning the weighing of evidence. This is not CUE. In making this determination, the Board also recognizes that, prior to the January 2014 decision, the Board had previously remanded the matter to obtain a medical opinion. In its February 2013 remand directives, it instructed the Agency of Original Jurisdiction (AOJ) to obtain an opinion regarding whether any diagnosed disorder was caused or aggravated by the Veteran’s service-connected fibromyalgia. The record does not contain an opinion that specifically addresses secondary service connection, as was required by the February 2013 remand. It is clear that entitlement to substantial compliance with Board directives was the law at the time of the January 2014 decision. Stegall v. West, 11 Vet. App. 268 (1998). However, any errors in that regard amount to a failure to adequately assist the Veteran in the development of his claim. This is not CUE. See 38 C.F.R. § 20.1404(d)(2). The Board ultimately finds that the arguments set forth in the February 2018 motion that the Board committed CUE in its January 2014 decision cannot succeed. Although the Board did not explicitly address every piece of evidence that was potentially in favor of the Veteran’s position, a reasonable reading of the evidence was that the Veteran’s urinary symptoms were caused by a diagnosed disability with a clear etiology of prostate cancer and its treatment. As explained above, the Board also cannot state that the record is absolutely clear that the January 2014 decision erred in its denial of service connection on a secondary basis despite the presence of the fibromyalgia VA examination report identified above. Ultimately, the Board finds that the Veteran’s arguments amount to a disagreement with the way that the Board weighed the evidence in its January 2014 decision. This cannot be CUE. As such, the Board must deny the February 2018 motion to revise or reverse the January 2014 decision on the basis of CUE. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate 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.