Citation Nr: 21022078 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-28 650 DATE: April 14, 2021 ORDER The motion for reversal or revision of the September 14, 2017, Board of Veterans’ Appeals (Board) decision that dismissed the issues of an earlier effective date for the award of a 100 percent rating for diabetes mellitus and an earlier effective date for the award of a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency is denied. FINDINGS OF FACT 1. In a final decision dated September 14, 2017, the Board dismissed the issues of an earlier effective date for the award of a 100 percent rating for diabetes mellitus and an earlier effective date for the award of a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency. 2. The moving party has not alleged an error of fact or law in the September 14, 2017, Board decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. CONCLUSION OF LAW Clear and unmistakable error (CUE) in the Board’s September 14, 2017, decision that dismissed the issues of an earlier effective date for the award of a 100 percent rating for diabetes mellitus and an earlier effective date for the award of a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency has not been established. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400 1411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party served in the U.S. Air Force from April 1975 to October 1979. The July 2018 motion alleging CUE also alleged CUE in a March 2006 Board decision. The motion to reverse or revise the March 2006 Board decision was denied in a May 2020 decision. Whether there was CUE in the Board’s September 14, 2017, decision that dismissed the issues of an earlier effective date for the award of a 100 percent rating for diabetes mellitus and an earlier effective date for the award of a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency. CUE Law A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision based on CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. Under the law, there is a three-pronged test to determine whether CUE is present in a prior determination: (1) either 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 that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Analysis The moving party alleges CUE in a September 14, 2017, Board decision that dismissed the issues of an earlier effective date for the award of a 100 percent rating for diabetes mellitus and an earlier effective date for the award of a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). In August 2006, the United States Court of Appeals for Veterans Claims (CAVC) issued its decision in Rudd v. Nicholson, 20 Vet. App. 296. This case held that there can be no freestanding claim for an earlier effective date and any such “claim,” must be dismissed. The September 14, 2017, Board decision properly applied the rule espoused in Rudd in its decision to dismiss the Veteran’s “claims” of earlier effective dates for the award of 100 percent ratings for diabetes mellitus and right leg chronic thrombophlebitis with venous insufficiency. The Board correctly provided the factual history of the appeal. In a March 2006 decision, the Board granted a 100 percent rating for right leg chronic thrombophlebitis with venous insufficiency effective July 1, 2004, and granted an effective date of May 30, 1990, for the award of a 100 percent rating for diabetes mellitus. The Veteran filed a motion for reconsideration which the Board denied in July 2007. The Veteran did not appeal the Board’s March 2006 decision or the denial of reconsideration. In October 2007, the Veteran submitted a statement indicating that he wished for the RO to review his claim based on the evidence that was before the Board when it issued its decisions. The RO construed this statement as claims for earlier effective dates, which it denied in September 2009. The Veteran appealed and the Board remanded the appeals in July 2015. The September 14, 2017, Board decision dismissed the appeals. The September 14, 2017, Board decision correctly determined that the Veteran had not appealed the March 2006 Board decision and that the appeal before it was based on an October 2007 statement which was construed as claims for earlier effective dates. The September 14, 2017, Board decision correctly applied the Rudd ruling that there can be no freestanding claim for an earlier effective date and any appeal of such a “claim,” must be dismissed. The Board then correctly dismissed the appeals of the earlier effective dates. The July 2018 CUE motion contains no allegation that there was an error of either fact or law in the September 14, 2017, Board decision. The moving party has failed to show that the September 14, 2017, Board decision contains an error of fact or of law that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The CUE motion is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.