Citation Nr: 21070205 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 190826-26962A DATE: November 23, 2021 ORDER A March 2021 motion for revision, on the basis of clear and unmistakable error (CUE), of an August 2020 Board of Veterans' Appeals (Board) decision that dismissed a prior motion to revise a June 2013 rating decision concerning an earlier effective date for service-connected heart disease is dismissed. FINDING OF FACT With respect to dismissing a prior motion to revise a June 2013 rating decision concerning an earlier effective date for service-connected heart disease, the March 2021 motion has not advanced specific enough allegations of CUE with respect to the August 2020 Board decision. CONCLUSION OF LAW The issue of whether an August 2020 Board decision that dismissed a prior motion to revise a June 2013 rating decision concerning an earlier effective date for service-connected heart disease is dismissed without prejudice to refilling. 38 U.S.C. §§ 7105, 7111; 38 C.F.R. §§ 20.205, 20.1400, 20.1403, 20.1404; Simmons v. Principi, 17 Vet. App. 104, 115 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970 in the United States Army, to include service in the Republic of Vietnam. This matter is before the Board via a March 2021 motion in which the Veteran contended that an August 2020 Board decision should be revised on the basis of CUE. Specifically, the Veteran contended that the August 2020 Board decision contained CUE with respect to its dismissal of a prior motion to revise a June 2013 rating decision on the basis of CUE that denied an earlier effective date for service-connected heart disease, to include ischemic heart disease and coronary artery disease. After reviewing the record, the Board concludes that it must dismiss the Veteran's new March 2021 motion without prejudice to refiling. In support of this determination, the Board first notes that 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 August 2020 Board decision addressed an August 2019 motion seeking an effective date prior to November 9, 2012 for the award of service connection for heart disease based on CUE in a June 2013 rating decision. The August 2020 Board explained that the motion to revise the June 2013 rating decision was invalid because the Veteran had previously appealed the June 2013 rating decision concerning the effective date issue to the Board and, in September 2015, the Board denied an earlier effective date. The August 2020 Board explained that when a Board decision affirms a rating decision issued by a Regional Office (RO), any alleged errors made in the rating decision are subsumed by the Board decision. See 38 C.F.R. § 20.1104. The August 2020 Board then stated that, as it was subsumed, the June 2013 rating decision could not be challenged via a CUE claim. The August 2020 Board then explained that all final Board decisions are subject to revision on the basis of CUE, except those decisions which have been appealed to and decided by the Court of Appeals for Veterans Claims (Court). See 38 C.F.R. § 20.1400(b). In the Veteran's case, the August 2020 Board indicated that the Veteran had previously appealed the September 2015 Board decision concerning the earlier effective date issue to the Court and, in December 2016, the Court issued a memorandum decision affirming the Board's denial. As the Court's December 2016 memorandum decision subsumed the Board's September 2015 decision concerning entitlement to an earlier effective date, any motion alleging CUE in the September 2015 decision was to be dismissed as moot. See Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003). Accordingly, the August 2020 Board dismissed the Veteran's August 2019 motion concerning an earlier effective date for the award of service connection for heart disease as the issue was rendered moot by the Court's December 2016 memorandum decision. Subsequent to the August 2020 Board decision, the Veteran filed another motion in March 2021 seeking revision on the basis of CUE. In this March 2021 motion, the Veteran again presented arguments regarding entitlement to an earlier effective date for the award of service connection for heart disease. The March 2021 motion did not specifically address why the dismissal ordered by the Board in August 2020 was erroneous and only noted that the August 2020 decision "may have been based on the fraudulent omission of evidence" and the failure to provide an adequate statement of reasons or bases. The Board finds that, in his March 2021 motion, the Veteran did not meet the threshold pleading requirements for an allegation of CUE with respect to the Board's August 2020 decision to dismiss his prior August 2019 motion for revision. The primary focus of the March 2021 motion was entitlement to an earlier effective date based, an issue already fully adjudicated by the Board in September 2015 and the Court in December 2016. Additionally, the Veteran's contention of fraud was vague and speculative and cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. The Board acknowledges the Veteran's frustration with the result of his prior claim which ultimately resulted in the issuance of the Court's decision in December 2016. However, a claimant may not seek to revise a decision of the Court vis-à-vis a collateral attack on a prior subsumed Board decision. See 38 C.F.R. § 20.1400(b). As the Veteran has not substantiated the pleading requirements with respect to CUE in the Board's August 2020 dismissal, the Board must now dismiss the March 2021 motion without prejudice to refiling. Simmons v. Principi, 17 Vet. App. 104, 115 (2003). (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.