Citation Nr: 21062354 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-26 058A DATE: October 7, 2021 ORDER The motion to revise or reverse on the basis of clear and unmistakable error (CUE) a prior decision that failed to award a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114 (r) is dismissed. The motion to revise or reverse on the basis of CUE a prior decision that failed to award a higher level of SMC under 38 U.S.C. § 1114 (o) is dismissed. FINDING OF FACT With respect to his claims for revision of a prior decision based on clear and unmistakable error, the Veteran has not identified the decision or decisions being challenged and has not set forth with clarity or specificity the alleged error of fact or law committed. CONCLUSION OF LAW Because the pleading requirements for a motion for revision of a prior decision based on CUE have not been met, the motion must be dismissed without prejudice to refiling. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1409. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 to July 1993. This matter comes before the Board on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed this decision and initially requested a Board hearing. See September 2020 correspondence. However, he subsequently withdrew the request. In April 2017, VA received an application for disability and related compensation benefits (VA Form 21-526EZ) and an accompanying statement from the Veteran that was interpreted as a motion for review and revision based on CUE of a prior decision. For the reasons that follow, the Board concludes that neither the Veteran nor his representative have advanced a specific claim of CUE and, therefore, the claim must be dismissed without prejudice to refiling. Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative 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. § 3.105 (a). CUE is a very specific and rare kind of error; it is the 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In this case, the Board finds that the Veteran has not alleged CUE with the requisite specificity, as he has not identified which rating or Board decision is being collaterally attacked with his April 2017 CUE motion or why CUE was present in any prior decision. A statement accompanying the initial CUE motion generally argues that the failure to grant SMC under 38 U.S.C. § 1114 (o) and (r) constitutes CUE. Statements made in the Veteran's February 2018 Notice of Disagreement and September 2019 VA Form 9 appeal include arguments that the Veteran should have been awarded higher levels of SMC. Similar arguments were made by the Veteran's representative in an October 2020 memorandum. However, the statements fail to identify either the rating decision or Board decision being collaterally attacked. The statements also fail to identify with clarity or specificity the alleged error of fact or law committed. As there are multiple decisions potentially related to his claim, the failure to specify the date of the rating or Board decision being collaterally attacked renders the Veteran's pleadings insufficient. Even accounting for a liberal reading of his contentions, the Board is still uncertain which specific rating or Board decision the Veteran wishes to collaterally attack. See Simmons v. Principi, 17 Vet. App. 104 (2003). For these reasons, the Board concludes that there has not been a sufficiently pled motion to revise a prior decision on the basis of CUE. The Board finds that it would be prejudicial to the Veteran for the Board to accept as legally sufficient a claim which could potentially foreclose any opportunity for the Veteran to raise a legally sufficient claim in the future. Therefore, the motion must be dismissed without prejudice to refiling. M. E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.