Citation Nr: 21070663 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 21-00 668 DATE: November 24, 2021 ORDER A January 2021 motion for revision contending that a June 2012 Board of Veterans' Appeals (Board) decision contained clear and unmistakable error (CUE) in only granting entitlement to service connection for tinnitus is dismissed without prejudice to refiling. FINDING OF FACT The January 2021 motion has not advanced specific enough allegations of CUE with respect to the June 2012 Board decision. CONCLUSION OF LAW The issue of whether a June 2012 Board decision that granted entitlement to service connection for tinnitus should be reversed or revised based on CUE is dismissed without prejudice to refilling. 38 U.S.C. § 7111; 38 C.F.R. §§ 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 August 1962 to June 1966 in the United States Air Force. This matter is currently before the Board via a January 2021 motion in which the Veteran contended that a June 2012 Board decision should be revised on the basis of CUE. Specifically, the Veteran contended that the June 2012 decision contained error in granting only service connection for tinnitus and not considering the entire scope of the concerns listed on his original claim for service connection received in July 1970. In support of his contention, the Veteran specified that the June 2012 decision contained 5 principal errors. Firstly, he stated that his service entrance and separation examinations were not analyzed correctly. The Veteran elaborated that this lack of proper consideration affected the outcome of the June 2012 decision by limiting the scope of the issue on appeal. Secondly, the Veteran indicated that he provided a copy of an August 1970 rating decision which denied his original claim to medical professionals at UCSF. The Veteran then stated that UCSF submitted a letter in August 2012 opining that the Department of Veterans Affairs (VA) was incorrect in 1970 in interpreting his service entrance and separation examinations. Thirdly, the Veteran stated that the June 2012 Board decision was erroneous as the underlying August 1970 rating decision should have considered why the Air Force decided to spend money and time to cross-train him for another job during a war. Fourthly, the Veteran remarked that Special Order P-105 from November 1963 was a direct result of his dizzy spells, spinning, lack of balance, and ringing in the ears. The Veteran explained that this should have been considered by VA professionals in rating his disabilities. Lastly, the Veteran stated that, in 1970, VA did not fulfill its duty to assist as it did not fully investigate the medical reasoning why the Air Force cross-trained him. The Veteran elaborated that his VA primary care doctor informed him that it was normal to have other medical problems associated with tinnitus. The Veteran concluded that, therefore, VA should determine whether hearing loss, lack of balance, and "spinning" were included within his original 1970 claim for compensation. In addressing the Veteran's January 2021 motion, the Board 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. Considering these principles, the Board finds that the Veteran has not met the threshold pleading requirements to fulfill an allegation of CUE with respect to the Board's June 2012 decision. Pursuant to the Court of Appeals for Veterans Claims' (Court) holding in Simmons v. Principi, the Board therefore dismisses the Veteran's January 2021 motion without prejudice to refiling. 17 Vet. App. 104, 115 (2003). In support of this determination, the Board will address each of the Veteran's 5 contentions in the order listed above. Concerning his first contention, the Veteran's disagreement with how the June 2012 Board evaluated his entrance and exit examinations may not serve as a basis of CUE pursuant to 38 C.F.R. § 20.1403(d)(3) (providing that "[a] disagreement as to how the facts were weighed or evaluated" is an example of a situation that is not CUE). In addition, although the January 2021 motion stated that the June 2012 Board impermissibly limited the scope of the Veteran's appeal by only granting service connection for tinnitus, the June 2012 decision also granted service connection for right ear hearing loss and a vestibular disorder manifested by dizziness. Accordingly, the Board currently finds that the June 2012 decision did not limit the scope of the Veteran's appeal to only the disability of tinnitus. Thus, the Veteran's first contention, in its entirety, does not meet the threshold pleading standard for a CUE motion. Regarding the Veteran's second contention that, in August 2012, medical professionals at UCSF stated that VA incorrectly interpreted his service entrance and separation examinations, such statements may not be considered in evaluating the propriety of the June 2012 decision as they were generated after the decision at issue. See 38 C.F.R. § 20.1403(a); Pierce, supra. Thus, the Veteran's second contention may also not serve as a basis of CUE. In regard to the Veteran's third contention, he argues that VA should have considered why the Air Force decided to spend money and time to cross-train him for another job amid a war. However, this contention is directed towards the August 1970 rating itself, not the Board's June 2012 decision. Regarding the issue of service connection for tinnitusidentified as the primary focus of the Veteran's January 2021 motionthe June 2012 Board found the August 1970 rating decision to be final. As the propriety of the August 1970 rating decision was not at issue before the Board in June 2012, any disagreement with the result of the August 1970 rating decision may not be adjudicated via a CUE motion in connection with the June 2012 Board decision. Rather, the Veteran may file a separate claim seeking revision of the August 1970 decision on the basis of CUE. Accordingly, the Board finds that the Veteran's third contention does not meet the threshold pleading standard for CUE in relation to the June 2012 decision. Regarding the Veteran's fourth contention, it appears that he is disagreeing with the ratings assigned for his service-connected disabilities. However, the June 2012 Board decision awarded service connection for tinnitus, right ear hearing loss, and a vestibular disorder manifested by dizziness. The appropriate ratings for these disabilitiesand the effective dates for the awards of service connectionwere not before the Board in June 2012 and are considered downstream issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Accordingly, disagreement as to downstream issues does not constitute CUE and may not serve as a basis to reverse or revise the June 2012 Board decision. Lastly, in regard to the Veteran's fifth contention, he asserts that VA did not fulfill its duty to assist in adjudicating his original 1970 claim. Again, as the 1970 claim regarding the issue of service connection for tinnitus was not before the Board in June 2012, it may not serve as a basis of CUE in reversing or revising the June 2012 decision. Further, even if VA's development in connection with the Veteran's original 1970 claim was before the Board in June 2012, failing to fulfill the duty to assist is explicitly identified in 38 C.F.R. § 20.1403(d)(2) as an example of a situation that may not be considered CUE. Accordingly, this contention also does not satisfy the threshold pleading standard for sustaining a CUE motion. Thus, as the statements and contentions raised in the January 2021 motion may not be considered CUE pursuant to 38 C.F.R. §§ 20.1400 20.1404, the Board concludes that the Veteran has not substantiated the pleading requirements with respect to revising the June 2012 Board decision. When a party fails to substantiate pleading requirements with respect to CUE, the appropriate remedy is dismissal without prejudice to refiling. Simmons, 17 Vet. App. at 115 (2003). Accordingly, the Board dismisses the Veteran's January 2021 motion without prejudice to refiling. 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION ON YOUR MOTION FOR REVIEW FOR CLEAR AND UNMISTAKABLE ERROR The attached decision by the Board of Veterans' Appeals (Board) is the final decision on your motion for the Board to review one or more of its final decisions for clear and unmistakable error (CUE). If you are satisfied with the outcome of this decision, you do not need to do anything. However, if you are not satisfied with this decision, 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. 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. There is no time limit for filing a motion for reconsideration or a motion to vacate with the Board. 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 then 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 such 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 may not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 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. VA FORM DEC 2016 4597b Page 1 CONTINUED ON NEXT PAGE 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. 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 submitted by or on behalf of the appellant. 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. 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 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 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, helpline@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 4597b Page 2 SUPERSEDES VA FORM 4597b, MAR 2015, WHICH WILL NOT BE USED