Citation Nr: 0727015	
Decision Date: 08/29/07    Archive Date: 09/11/07

DOCKET NO.  05-35 565	)	DATE
	)
	)


THE ISSUE

Whether a February 2005 Board of Veterans' Appeals (Board) 
decision, which denied service connection for agoraphobia 
with panic attacks, should be revised or reversed due to 
clear and unmistakable error (CUE).


REPRESENTATION

Moving party represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Mark Vichich, Associate Counsel


INTRODUCTION

The moving party served on active duty from July 1979 to July 
1982.  

This matter comes before the Board of Veterans' Appeals 
(Board) on motion by the moving party for revision or 
reversal of the February 2005 Board decision on the grounds 
of CUE in the denial of service-connection for agoraphobia 
with panic attacks.  

In a November 2005 letter to the moving party's accredited 
representative of record, the Board acknowledged the CUE 
motion and advised the moving party and his representative to 
review the rules relating to such matters found at 38 
U.S.C.A. 
§ 7111 (West 2002 & Supp. 2006) and 38 C.F.R. §§ 20.1400-1411 
(2006).  


FINDINGS OF FACT

1.  The Board denied the claim for service connection for 
agoraphobia with panic attacks in February 2005.

2.  The moving party's alleged error - that the VA 
examination was inadequate - is not a basis on which CUE can 
be based.  	


CONCLUSION OF LAW

The Board's February 2005 decision did not contain CUE.  38 
U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400-20.1411 
(2006).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) and the 
implementing regulations contain provisions relating to VA's 
duties to notify and assist a claimant in developing a claim 
for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2006); 38 C.F.R. § 3.159 (2006).  The Court of Appeals 
for Veterans Claims (Court) has held that reversal or 
revision of prior decisions due to CUE is not a claim but 
rather a collateral attack on a prior decision.  Thus, one 
requesting such reversal or revision is not a claimant within 
the meaning of the VCAA and consequently, the notice and 
development provisions of the VCAA do not apply in CUE 
adjudications.  See Livesay v. Principi, 15 Vet. App. 165, 
178 (2001) (en banc).

Legal Criteria

Motions for review of prior Board decisions on the grounds of 
CUE are adjudicated pursuant to the Board's Rules of Practice 
at 38 C.F.R. §§ 20.1400-20.1411 (2006).  The motion alleging 
CUE in a prior Board decision must set forth clearly and 
specifically the alleged errors of fact or law in the Board 
decision, the legal or factual basis for such allegations, 
and why the result would have been different but for the 
alleged error.  38 C.F.R. § 20.1404(b) (2006).

In the implementing regulation, CUE is defined as a very 
specific and rare kind of error, of fact or 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.  38 C.F.R. 
§ 20.1403(a) (2006).

A determination of CUE in a prior Board decision must be 
based on the record and the law that existed when that 
decision was made.  38 C.F.R. § 20.1403(b)(1) (2006).  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 CUE.  38 C.F.R. § 
20.1403(c) (2006).

Examples of situations that are not CUE are: (1) a new 
medical diagnosis that 'corrects' an earlier diagnosis 
considered in a Board decision.  (2) The Secretary's failure 
to fulfill the duty to assist.  (3) A disagreement as to how 
the facts were weighed or evaluated.  38 C.F.R. § 20.1403(d) 
(2006).  CUE does not include 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.  38 C.F.R. § 
20.1403(e) (2006).

Analysis

In the moving party's motion for revision of the prior Board 
decision, he essentially alleged that the VA psychiatry 
examination conducted in August 2004 was inadequate.  
Specifically, the moving party alleged that the VA examiner 
did not ask pertinent questions and instead spent more time 
leaving the room to talk to other people during the 
examination.  The specifically alleged error, therefore, is 
essentially that the Board breached VA's duty to assist by 
not providing an adequate VA examination. 

As noted above, VA's failure to fulfill the duty to assist is 
not an adequate basis for CUE.  38 C.F.R. § 20.1403(d) 
(2006).  The Court of Appeals for the Federal Circuit 
(Federal Circuit) explained that because a CUE claim requires 
that the error be both outcome determinative and based upon 
the evidence of record at the time of the original decision, 
a breach of the duty to assist could not be the basis for a 
CUE claim.  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 
2002).  

The moving party has not specifically alleged an error for 
which CUE can be legally based and the motion must be denied.  


ORDER

The motion for revision of the February 2005 Board decision 
is denied.


                       
____________________________________________
	U. R. POWELL
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs