Citation Nr: 21063498 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 21-00 377 DATE: October 14, 2021 ORDER A November 2016 motion for revision contending that a November 2009 Board of Veterans' Appeals (Board) decision contained clear and unmistakable error (CUE) in denying entitlement to an effective date prior to January 30, 1995 for the award of service connection for major depressive disorder and generalized anxiety disorder (psychiatric disability) is dismissed. FINDING OF FACT 1. In a November 2009 decision, the Board denied entitlement to an effective date prior to January 30, 1995 for the grant of service connection for a psychiatric disability. 2. The Veteran timely appealed the November 2009 Board decision to the Court of Appeals for Veterans Claims (Court). 3. In a September 2011 Memorandum Decision, the Court affirmed the Board's November 2009 decision to deny an earlier effective date for service connection for a psychiatric disability. 4. As the November 2009 Board decision concerning entitlement to an earlier effective date was appealed to and affirmed by the Court in September 2011, the November 2009 Board decision was subsumed by the Court's September 2011 Memorandum Decision. The November 2009 Board Decision is not capable of revision on the basis of CUE. CONCLUSION OF LAW A November 2016 motion contending that a November 2009 Board decision contained CUE in denying an effective date prior to January 30, 1995 for award of service connection for a psychiatric disability is dismissed. 38 U.S.C. §§ 501(a), 7111; 38 C.F.R. § 20.1400(b)(1); Cacciola v. Gibson, 27 Vet. App. 45 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1968 to December 1968 in the United States Air Force. This matter is before the Board via a motion for revision received in November 2016 in which the Veteran contended that a November 2009 Board decision was clearly and unmistakably erroneous in denying an effective date prior to January 30, 1995 for the award of service connection for a psychiatric disability. A prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1411. To warrant a finding of CUE, there must have been 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 results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). The basis for this standard is that, "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, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Additionally, a CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, in a motion alleging CUE in a prior Board decision, the claimant must specifically indicate what the error was and must provide persuasive reasons why the decision would have been manifestly different but for the error. See Fugo, 6 Vet. App. at 44. Statements that the Board improperly weighed and evaluated evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. In this case, the Veteran has contended that a November 2009 Board decision contained CUE in denying an earlier effective date for the award of service connection for a psychiatric disability. In addressing the Veteran's motion, the Board notes that, as stated above in the Findings of Fact section, the Veteran timely appealed the November 2009 decision to the Court. Thereafter, in September 2011, the Court adjudicated the Veteran's appeal and affirmed the Board's November 2009 decision via a Memorandum Decision. Generally, when a claimant appeals a Board decision to the Courtand the Court adjudicates the underlying issues appealedthe appealed Board decision is replaced and subsumed by the Court's decision. Accordingly, in this case, the November 2009 Board decision concerning the issue of an earlier effective date for a psychiatric disability was subsumed by the Court's September 2011 Memorandum Decision. See Cacciola v. Gibson, 27 Vet. App. 45, 59 (2014). Consistent with this understanding, the Board's Rules of Practice contain two exceptions to the general rule that all prior, final Board decisions may be revised via motion on the basis of CUE. Specifically, 38 C.F.R. § 20.1400(b) provides that all final Board decisions are subject to revision except: (1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and (2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction. In Disabled American Veterans v. Gober, the United States Court of Appeals for the Federal Circuit upheld the validity of 38 C.F.R. § 20.1400(b), finding it neither contrary to its authorizing statute38 U.S.C. § 7111or arbitrary or capricious. 234 F.3d 682, 693-94 (Fed. Cir. 2000). As the Veteran timely appealed the November 2009 Board decision to the Court, and the Court issued a Memorandum Decision in September 2011 affirming the Board's November 2009 denial of an earlier effective date for the award of service connection for a psychiatric disability, 38 C.F.R. § 20.1400(b)(1) is applicable in the instant case, rendering the November 2009 Board decision not subject to revision on the basis of CUE by operation of law. Accordingly, the Board dismisses the Veteran's November 2016 motion. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.