Citation Nr: 20032901 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-21 607 DATE: May 12, 2020 ORDER The Veteran’s motion for revision of the August 21, 2009 rating decision denying entitlement to service connection for lumbarthoracic degenerative disc disease (DDD), i.e., a back condition, owing to clear and unmistakable error (CUE) is dismissed. REMANDED Entitlement to service connection for nerve injury to the right upper thigh is remanded. FINDINGS OF FACT 1. Neither the Veteran nor his representative has adequately set forth allegations of CUE, the legal or factual basis for such allegations of error, or why the result of the prior August 2009 rating decision now being collaterally attacked would have been manifestly different but for the error. 2. Moreover, that August 2009 rating decision was not fatally flawed or egregious based on evidence of record at the time of that decision and the law then in effect. CONCLUSION OF LAW The Veteran has not filed a properly pled claim of CUE in response to the August 2009 rating decision; therefore, to this extent, his appeal is dismissed without prejudice to refiling. 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1970 to March 1983, from August 1987 to March 1990, and from February 1991 to March 1991. This appeal to the Board of Veterans’ Appeals (Board) is from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) – which, in relevant part, denied the Veteran’s claim of entitlement to service connection for a history of nerve injury to his right upper thigh and determined that no revision was warranted in a prior August 2009 rating decision denying compensation additionally for a back disability. The Veteran’s motion for revision of the August 21, 2009 rating decision denying entitlement to service connection for a back condition, including on the premise of CUE, is summarily dismissed The Veteran did not appeal the August 2009 rating decision earlier considering and denying his claim of entitlement to service connection for a back condition. Therefore, that prior decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103.   To establish CUE in a prior decision, and in turn vitiate its “finality” (res judicata), the requirements of a three-pronged test must be met: (1) either the facts known at the time of the decision being collaterally attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. CUE is a collateral attack on an otherwise final rating decision by the agency of original jurisdiction (AOJ) – which in this instance is the local RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a Veteran who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).   In order to reasonably raise a claim of CUE, the Veteran must provide some degree of specificity as to what the alleged error is. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003); Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the Veteran cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). To show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). If a Veteran fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). In this case at hand, the Veteran filed correspondence in December 2012 alleging CUE in the RO’s prior August 2009 rating decision denying his claim of entitlement to service connection for his back condition. But he and his representative have not made any sufficiently specific allegation of impropriety, misapplication of law or regulations, or factual inaccuracy in that earlier rating decision concerning this claim. Rather, the Veteran only stated that the claim “was not developed to the OPTIMUM”. He did not specify what development the RO had failed to perform or complete, nor did he explain with specificity how this missing development would have altered the RO’s ruling on his claim in August 2009. In his most recent March 2020 written statement, withdrawing his request for a hearing on this matter, the Veteran spoke of starting his claim way back when, in 2002, of having been denied three or four times since, and that his back has gotten better. But he also asked, “how many Marines have filed cases on the backs.” He added that he felt he has been failed by the system for too long, which is the reason he withdrew his hearing request. None of the statements from the Veteran or his representative have provided specific legal grounds for overturning the RO’s prior August 2009 rating decision denying this claim for service connection for a back condition. It is not shown that decision was fatally flawed or egregious or did not correctly apply the law then in effect. Accordingly, the Board finds that the Veteran has not sufficiently pled a valid claim of CUE. As the arguments raised in the record do not meet the specificity required for allegations of CUE, the Board is dismissing this appeal to the extent predicated on CUE in the August 2009 decision, albeit without prejudice to refiling. See Hillyard v. Shinseki, 24 Vet. App. 343 (2011). REASONS FOR REMAND Entitlement to service connection for nerve injury to the right upper thigh is remanded. The Veteran additionally alleges that he sustained a nerve injury to his right upper thigh while in service. In January 2014, in response to this claim, he underwent a VA examination for peripheral nerve conditions. But the VA examiner refused to provide a nexus opinion regarding the origins of this claimed disability because the Veteran’s service treatment records (STRs) were illegible.   This matter is REMANDED for the following action: 1. Attempt to have legible STRs scanned and associated with the file. 2. Return the file to the January 2014 VA examiner (or if he is unavailable to another qualified examiner) for the medical nexus opinion that is still needed concerning the Veteran’s claim of entitlement to service connection for a nerve injury to his right upper thigh. To this end, the examiner is asked to indicate whether it is as likely as not that any currently diagnosed nerve injury of the Veteran’s right upper thigh is the result of an injury, disease or event during his service. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED