Citation Nr: 21000771 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-10 612 DATE: January 6, 2021 ORDER The appeal as to the issue of entitlement to an effective date earlier than September 14, 2007 for the award of a separate 50 percent rating for migraine headaches on the basis of December 2011, February 2012 and March 2012 allegations of clear and unmistakable error (CUE) in a November 2011 Board decision is dismissed without prejudice to refiling. (The November 2018 motion alleging CUE in the November 2011 Board decision has been separately docketed and will be addressed separately). FINDINGS OF FACT 1. A November 2011 Board decision awarded a 50 rating for migraine headaches separate from service-connected sinusitis, effective September 14, 2007. 2. The Veteran did not appeal the November 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Board dismissed his December 2011 request for reconsideration of the November 2011 Board decision in July 2019. 3. The December 2011, February 2012 and March 2012 statements alleging CUE in the November 2011 Board decision concern how the evidence was weighed and do not demonstrate that the correct facts, as they were known at that time, were not before the adjudicator or that the statutory or regulatory provisions extant at the time were incorrectly applied, resulting in an outcome-determinative error. CONCLUSIONS OF LAW 1. The November 2011 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The pleading requirements for a motion to revise a final Board decision based on CUE are not met, and the December 2011, February 2012 and March 2012 CUE motions are dismissed without prejudice to refilling. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1100, 20.1400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1976 to December 1996. He died in July 2013. The appellant, as surviving spouse of the Veteran, was determined to be the proper substitute for the claim pending at the time of his death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) RO. In September 2018, the appellant testified before the undersigned Veterans Law Judge. 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. A motion for revision of a decision based on CUE must be in writing, and must be signed by the moving party or that party’s representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable VA file number; and the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(a). The motion to review a prior final Board decision on the basis of CUE must also 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). 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 clear and unmistakable error 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 clear and unmistakable error, 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. Reviewing the factual background of this case, the Board issued a decision in November 2011 finding that a separate 50 percent disability rating for service-connected migraine headaches was warranted, effective September 14, 2007. This decision was sent to the Veteran at his last known address with a copy of his appellate rights. In November 2011, the RO issued a rating decision implementing the Board’s decision. Notice of the November 2011 rating decision was provided to the Veteran that same month. Notably, the November 2011 rating decision was merely an administrative action implementing the Board’s findings and not an appealable decision, as the RO did not have any discretion in awarding the effective date already assigned by the Board. Thus, had the Veteran wanted to continue his appeal of this matter, he should have appealed the November 2011 Board decision that determined the assigned effective date of September 14, 2007. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006) (under res judicata there can only be one valid decision on any adjudicated issue or claim and that decision is the only appropriate target for any future collateral attack on that issue or claim). Prior to his death, the Veteran did not file a timely notice of disagreement with the Court of Appeals of Veterans Claims (Court) within 120 days of the November 2011 decision. In this regard, his December 2011 statement, which the Board construes as a Motion for Reconsideration, was dismissed via July 2019 Correspondence. To the extent such motion tolled the appellant’s ability to appeal to the Court following the Veteran’s death, she did not do so within 120 days of the July 2019 dismissal of the Motion for Reconsideration. See Rosler v. Derwinski, 1 Vet. App. 241 (1991) (if following an initial final Board decision the claimant -- before filing an NOA with this Court -- files a motion for reconsideration with the Board during the 120-day judicial appeal period, the finality of the initial Board decision is abated by that motion for reconsideration). Thus, the November 2011 Board decision is now final. See 38 C.F.R. §§ 20.1100, 20.1404. Moreover, the Board finds that the Veteran’s December 2011, February 2012 and March 2012 statements do not adequately plead CUE in the November 2011 Board decision. In the December 2011 statement, the Veteran, in essence, asserted that an effective date of July 13, 2002, for the grant of a separate rating for migraine headaches was warranted, as that was the date of his original claim for service connection. Further, the Veteran asserted that his migraine symptoms were consistent with a 30 percent disability rating, prior to September 14, 2007. In the February 2012 statement, the Veteran reported that he suffered from incapacitating migraines prior to September 14, 2007. See also March 2012 statement; September 2018 Board hearing at 3. These arguments solely speak to how the facts were weighed by the Board in November 2011 and thus do not adequately plead CUE. In sum, the Board finds that the appellant’s December 2011, February 2012 and March 2012 correspondence did not 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 as required under 38 C.F.R. § 20.1404(b). Accordingly, the case must be dismissed for failure to meet pleading requirements, without prejudice to refiling. See 38 C.F.R. § 20.1404(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.