Citation Nr: 21076828 Decision Date: 12/28/21 Archive Date: 12/27/21 DOCKET NO. 17-32 508 DATE: December 28, 2021 ORDER Service connection for posttraumatic stress disorder on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from November 1971 to November 1974. 2. The Veteran has not alleged an error of fact or law in the October 2010 rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSION OF LAW The criteria for revision or reversal of the October 2010 Board decision that denied service connection for PTSD on the basis of CUE have not been met. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in July 2021. A copy of the transcript has been associated with the claims file. He asserts CUE in a prior VA decision regarding the denial of service connection for PTSD. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Historically, the Veteran filed a claim of service connection for PTSD in June 2010. In October 2010, the Regional Office (RO) denied the claim. In November 2010, he filed a notice of disagreement (NOD) and stated that the denial of the claim was CUE, as service personnel records showed that he had been a victim of a personal assault and testified in a court martial proceeding against the attacker. In November 2012, the RO found no CUE in the prior rating decision regarding the denial of service connection for PTSD. A July 2013 NOD regarding this determination was received by the Veteran. A statement of the case (SOC) was issued in June 2017 and this appeal followed. The RO found that CUE was not committed regarding the denial of service connection for PTSD, as the Veteran's stressor of being personally attacked in service could not be corroborated. Service treatment records (STRs) reflect that the Veteran reported being stabbed by his wife in 1972. Personnel records also reflect that he had multiple unauthorized absences, was court martialed, and eventually was discharged in 1974. Other than his statement, there is no other evidence showing that he was personally assaulted in service and/or that he testified against his attacker in a court martial proceeding. With regard to the October 2010 rating decision, there is no showing that the correct facts were not before the adjudicator or that the statutory or regulatory provisions extant at that time were incorrectly applied. Specifically, personnel records did not show that the Veteran reported an in-service assault at any time. Thus, the October 2010 rating decision was consistent with, and supported by, the evidence of record at the time; was in accordance with governing law and regulations; and did not involve CUE. Consequently, revision of this decision is not warranted, and the appeal is denied. In summation, the Veteran has not shown that the correct facts were not before VA or the statutory or regulatory provisions were incorrectly applied, or that any such error would have manifestly changed the outcome of the claim, based on the record and law that existed at the time of the adjudication in question. As such, CUE in the October 2010 rating decision with regard to the denial of service connection for PTSD has not be established and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, Associate 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.