Veteran Has Not Satisfied The Threshold Pleading Requirement For Cue

[carlie]

http://www.va.gov/vetapp12/Files4/1229804.txt

Citation Nr: 1229804

Decision Date: 08/29/12 Archive Date: 09/05/12

DOCKET NO. 10-10 546 ) DATE

)

)

THE ISSUE

Whether a January 27, 2009 decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for right knee arthritis as secondary to service-connected left knee and bilateral ankle disabilities should be revised or reversed on the grounds of clear and unmistakable error.

REPRESENTATION

Moving party represented by: The American Legion

ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel

INTRODUCTION

The moving party served on active duty from October 1977 to October 1980. He also served in a reserve component, which included a period of active duty for training from June to December 1976.

This matter is currently before the Board on motion for revision or reversal on the grounds of clear and unmistakable error (CUE) of a January 27, 2009, decision of the Board that denied entitlement to service connection for right knee arthritis as secondary to service-connected left knee and bilateral ankle disabilities.

The Board notes that in an April 2009 letter, the moving party's then-appointed agent, Ms. J. A. V., filed a motion for a reconsideration of the above-noted January 27, 2009 Board decision on the basis of CUE. Thereafter, in September 2009, the moving party filed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) granting a power-of-attorney (POA) with The American Legion.

In a March 2010 letter to the moving party, the Board acknowledged the CUE motion. As the Board was unaware that the moving party had granted a power-of-attorney in favor of The American Legion, it advised the moving party and the agent to review the rules relating to such matters regarding CUE found at 38 U.S.C.A. § 7111 (West 2002) and 38 C.F.R. §§ 20.1400-1411 (2011). Ms. J. A. V. was advised by separate letter, also dated in March 2010, of the opportunity to file a relevant response and of the opportunity to review the claims file prior to filing a further response.

In June 2012, the Board forwarded the moving party's claims file to The American Legion for the opportunity to file a relevant response regarding the moving party's CUE motion and for the opportunity to review the claims file prior to filing a further response. That same month, June 2012, following a review of the claims file, The American Legion submitted a written response noting that they had no additional argument to provide.

In August 2012, the Board reconsidered its previous January 27, 2009 decision. It found the decision contained findings of fact that were supported by plausible reasons and bases. As a result, the Board denied the moving party's motion for reconsideration of the Board's January 27, 2009 decision.

FINDINGS OF FACT

1. On January 27, 2009, the Board issued a decision that denied service connection for right knee arthritis as secondary to service-connected left knee and bilateral ankle disabilities.

2. The moving party's allegations of error amount to no more than a disagreement with how the Board weighed or evaluated the facts.

CONCLUSION OF LAW

The veteran has not satisfied the threshold pleading requirements for the revision of a Board decision on grounds of CUE. 38 U.S.C.A. § 7111 (West Supp. 2000); 38 C.F.R. §§ 20.1400, 20.1401, 20.1403, 20.1404 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A motion for revision of a 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 decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. See Bouton v. Peake, 23 Vet. App. 70 (2008); Fugo v. Brown, 6 Vet. App. 40 (1993). 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 the requirement of the previous sentence. Motions that fail to comply with the requirements shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b); see Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000).

The Board notes that 38 C.F.R. § 20.1403(a) provides that CUE is a very specific and rare kind of error. It is the kind of error of fact or law which, 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 in existence at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). Review of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. (In August 2010, the moving party submitted to the Board an April 2010 medical report from Sports and Orthopaedic Specialists-Southwest. This medical report was not associated with the record at the time of the January 27, 2009 Board decision; thus, it is not for consideration in the Board's review of the moving party's motion of CUE.)

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 that, 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 CUE. See 38 C.F.R. § 20.1403(b), ©; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999).

The following situations do not constitute CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in a Board decision; (2) VA failure to fulfill the duty to assist; (3) a disagreement as to how the facts were weighed or evaluated; and/or (4) 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 pertinent statute or regulation. 38 C.F.R. § 20.1403(d)-(e); see also 38 U.S.C.A. §§ 501(a), 7111 (West 2002).

In his April 2009 motion for revision based on CUE, the moving party alleged that Dr. W. B., the examiner who performed a September 2007 VA examination, based her opinion on the misconception that the moving party had worked as a baseball umpire when in fact the moving party had been a slow pitch softball umpire. The moving party reported that a slow pitch softball umpire did not squat behind home plate and, thus, did not put excessive weight on his knees.

The moving party also disagreed with Dr. W. B.'s conclusion that the moving party had not suffered any residual disability of his right knee following a fall outside a VA medical facility. The moving party explained that he had not sought immediate medical treatment following the fall because he immediately underwent scheduled right ankle surgery. Following surgery, he was not allowed to put any weight on his right leg and was given a wheelchair and prescribed pain medication. He has noted that he later was given and used crutches. The moving party added that the pain medication relieved his pain both in his surgically repaired right ankle and also his injured right knee. (He asserted that the injury to the knee was due to instability in his service-connected ankle.)

Finally, the moving party alleged error in the Board decision as a result of the fact that the Board did not consider an "unattached ligament" discovered during the moving party's right ankle surgery. The unattached ligament was alleged by the moving party to have resulted in instability and pain in his right ankle thus resulting in dysfunction in his right knee.

As noted above, in its January 27, 2009 decision, the Board denied entitlement to service connection right knee arthritis as secondary to service-connected left knee and bilateral ankle disabilities. The Board discussed the evidence of record, giving substantial weight to the examination findings and opinion of Dr. W. B., the VA examiner who performed the September 2007 VA examination.

The Board's review of the report of September 2007 VA examination reflects that Dr. W. B. noted that, "[The moving party] has done umpiring for adult sof[t]ball games in the past." Subsequently, in her medical opinion summary, Dr. W. B. stated that the moving party had a history of umpiring "baseball games." Whether Dr. W. B. inadvertantly wrote "baseball" instead of "softball" in her medical opinion summary is not known. Nonetheless, any argument regarding the interpretation of her comment or what she necessarily meant by it, or how the Board considered and evaluated her opinion, is at best a disagreement on how the facts were weighed.

Likewise, the moving party's additional arguments challenge the findings and conclusions of Dr. W. B., as well as the Board's acceptance of her opinions in denying his claim. In particular, in her report of September 2007 VA examination, Dr. W. B. does acknowledge the moving party's altered gait, but also concludes that the level of degenerative change in the moving party's knee was not consistent with an altered gait due to a right ankle condition. Thus, a challenge of Dr. W. B.'s findings and conclusions and the Board conclusions based on those findings is also no more than a disagreement on how the facts were weighed.

In short, the moving party has not alleged that 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 based on the medical evidence and the result would have been manifestly different but for the alleged error. In this case, the moving party has not asserted any factual or legal deficiency with the Board's January 27, 2009 decision. The moving party does not refer to any specific regulation, statute, or case law, does not describe how the law was misapplied, and does not provide reasons as to why the result in the Board's January 27, 2009 decision would have been manifestly different but for such an error.

Therefore, the Board does not find that the moving party's motion for revision of the Board's January 27, 2009 decision based on CUE sets forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 20.1404(b).

Because the moving party's motion fails to comply with the requirements set forth in 38 C.F.R. § 20.1404(b), the motion is dismissed without prejudice.

ORDER

The motion to revise or reverse the Board's January 27, 2009 decision on the basis of CUE is dismissed without prejudice as to refiling.

_________________________________

MARK F. HALSEY

Veterans Law Judge, Board of Veterans' Appeals

[Berta]

Geez, didnt this vets rep (The AL) know how to advise as to writing the CUE claim?????

Then again, it sounds like the CUE had no merit anyhow......... unless the DC and/or rating % was wrong and the AL didnt advise the vet to CUE on that basis??????

I love these CUE claims Carlie......and am sure that our other Cuearinos here do too!