Citation Nr: 22010809 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 21-00 765 DATE: February 24, 2022 ORDER The motion for reversal or revision of the July 20, 1999, Board of Veterans' Appeals (Board) decision that denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe is denied. FINDINGS OF FACT 1. In a final decision dated July 20, 1999, the Board denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe. 2. The moving party has not alleged an error of fact or law in the July 20, 1999, 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 July 20, 1999, decision that denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe has not been established. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active service from August 1983 to July 1988, of which only the period of service from August 1983 to November 1986 is considered honorable for VA purposes. This matter is currently before the Board on the moving party's July 2019 motion for revision or reversal on the grounds of CUE in the July 20, 1999, Board decision that denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe. The Veteran testified at a January 20201 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Whether there was CUE in the July 20, 1999 Board decision that denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe. Applicable Caselaw, Statutory, and Regulatory Provisions 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 on the basis of 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. The Court has set forth 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). A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim. George v. Wilkie, 991 F.3d 1227 (2021); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final. Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed"). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a July 20, 1999, Board decision that denied a claim of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe. 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). The pertinent laws and regulations at the time of this decision were as follows. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.655, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). In the July 2019 motion, the Veteran's representative raised multiple allegations of error in the July 20, 1999 Board decision. The moving party argues that, had such errors not been committed, the July 20, 1999, Board decision manifestly would have granted service connection for subdural hematoma and porencephaly of the right frontal lobe. 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). First, the moving party asserts that the Board in its July 20, 1999 decision committed legal and factual error by not ensuring compliance with the Board's June 4, 1997 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). However, failure to ensure compliance with prior remand directives, as is required pursuant to Stegall, does not dictate a reversal or revision of a prior Board decision on the basis of CUE, as the appropriate remedy for such an error is a remand. Pursuant to Stegall, 11 Vet. App. at 271, where the Board fails to ensure substantial compliance with its prior remand directives, remand is appropriate. Furthermore, to the extent that the moving party argues that the July 20, 1999 Board decision should be vacated due to this Stegall violation, the Board notes that vacatur is not an available remedy for CUE under 38 C.F.R. §§ 20.1400-1411. To the contrary, the only remedies for CUE are reversal or revision. Finally, the Board notes that a remand to correct a Stegall violation is not a manifestly different outcome, as the Court has explained that "a manifest change in the outcome of the adjudication meant that, absent the alleged clear and unmistakable error, the benefit sought would have been granted at the outset." King v. Shinseki, 26 Vet. App. 433, 441 (2014) (citing Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("[E]ven 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." Thus, a remand to ensure compliance with the Board's prior remand directives, as required by Stegall, would not result in a manifestly different outcome. Therefore, the alleged failure by the Board in the July 20, 1999 decision to ensure compliance with the prior remand directives does not constitute CUE. To the extent that the moving party may be arguing that VA failed in its duty to assist by not ensuring compliance with the prior remand directives, the Board notes that, as discussed above, VA's failure in the duty to assist cannot constitute CUE. 38 C.F.R. § 20.1403(d); Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Second, the moving party asserts that the Board in its July 20, 1999 decision committed legal and factual error by denying the claim based on the Veteran's failure to report to an examination, without good cause. The moving party argues that if the Board had properly applied 38 C.F.R. § 3.655 and considered the Veteran's claim for service connection to be an original compensation claim, it would have found that the Veteran's subdural hematoma and porencephaly of the right frontal lobe was related to or caused by service, and service connection for subdural hematoma and porencephaly of the right frontal lobe would have been granted. In support of this argument, the moving party contends that the issue of entitlement to service connection for subdural hematoma and porencephaly of the right frontal lobe that was denied by the Board in the July 20, 1999 decision arose from the Veteran's July 1998 VA Form 21-526, which encompassed the claim for service connection for subdural hematoma and porencephaly of the right frontal lobe, which was added to the claim when reasonably raised by the record. The moving party accurately states that this original claim was continuously pursued until it was ultimately denied by the Board in the July 20, 1999 decision. The moving party further accurately states that there was no transformative event that would have severed the chain that could have invited a reclassification of the claim to that of "any other original claim." Finally, the moving party accurately states that the Board in the July 20, 1999 decision errored by not analyzing whether the Veteran's March 1999 letter stating his reasons for missing the scheduled VA examinations constituted good cause for not attending the examinations. Thus, in its July 20, 1999, decision the Board made factual and legal errors in denying the claim under 38 C.F.R. § 3.655, based solely on the Veteran's not attending the scheduled examination, without good cause. However, it is not clear from the record that, but for this error, the outcome would have been manifestly different. The moving party contends that the claim should be granted based on the positive evidence in record from Dr. K., Dr. G., and Dr. A., linking the diagnosed subdural hematoma and porencephaly of the right frontal lobe to the in-service head injury. However, the medical evidence from Dr. K. and Dr. G. does not clearly indicate whether the doctors are providing etiology opinions or just restating the Veteran's reported history. Furthermore, an August 1987 service treatment record indicated that the Veteran complained of headache and back pain, but reported no head trauma. While the March 1990 VA neurology treatment note from Dr. A. indicated that the Veteran's subdural hematoma and porencephaly of the right frontal lobe was "felt to be related to the [complaint of] old trauma with [motor vehicle accident]" and that the "[patient] should have some service connected for this obvious disability," no explicit rationales were given to support these opinions, and they were based on the Veteran's unsubstantiated report of a head injury during service. The Board notes that the Veteran's reports of a motor vehicle accident resulting in a head injury during service was not independently substantiated, such as by service department records, at the time of the July 20, 1999 Board decision. Thus, the evidence does not compel the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the identified errors and the moving party's argument is essentially a disagreement regarding how the Board weighed the evidence in the July 20, 1999 decision. To that extent, he is reminded that disagreement as to how the facts were weighed or evaluated does not constitute CUE. See 38 C.F.R. § 20.1403(d)(3). Review of the record reflects no other pled CUE arguments raised by the moving party. Because the argument presented by the moving party amounts to nothing more than disagreement with how the facts were weighed and evaluated, which is explicitly not CUE, the Board finds there was no CUE in the July 20, 1999 Board decision denying service connection for subdural hematoma and porencephaly of the right frontal lobe. Based on the foregoing, the moving party has failed to show that the July 20, 1999 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 bene manifestly different but for the error. Hence, the moving party's CUE motion must be denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.