Citation Nr: 0703091 Decision Date: 02/01/07 Archive Date: 02/14/07 DOCKET NO. 05-01 124 ) DATE ) ) THE ISSUE Whether an August 12, 1991, decision of the Board of Veterans' Appeals (Board) contained clear and unmistakable error (CUE) in determining that service-connected death benefits were barred because the veteran's death in July 1989 resulted from his own willful misconduct. ATTORNEY FOR THE BOARD M. Salari, Counsel INTRODUCTION The DD Form 214 of record indicates that the veteran had active duty service from May 1981 to March 1985, and that he immediately reenlisted in March 1985. He died in July 1989, while serving on active duty. The moving party was the veteran's spouse at the time of his death. In statements dated in 2004 and thereafter, the moving party has alleged that CUE was committed by VA in finding that the veteran's death resulted from his own willful misconduct. While she initially indicated that CUE was committed by the RO, she was informed that the RO's decision had been upheld by the Board in an August 12, 1991, decision. She now claims CUE with the Board's finding and asks that it be revised or reversed on the grounds of CUE. See 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2005). FINDINGS OF FACT 1. By decision entered on August 12, 1991, the Board determined that the veteran's death was caused by his own willful misconduct. 2. In deciding the appellant's claim in August 1991, the Board did not commit an 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. CONCLUSION OF LAW The August 12, 1991 Board decision was not clearly and unmistakably erroneous in determining that the veteran's death was caused by his own willful misconduct. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1401, 20.1403, 20.1404 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-4 75, 114 Stat. 2096 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has noted that the VCAA is not applicable to all cases. Wensch v. Principi, 15 Vet. App. 362 (2001) (citing Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001)). In this case, the issue on appeal is a CUE motion, which must be based on the record and law that existed at the time of the prior adjudication in question. 38 C.F.R. § 20.1403(b). The VCAA is not applicable to claims of CUE, since CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). II. CUE VA law provides that Board decisions are subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a). 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. §§ 20.1400-1411 (2005). Under § 20.1404(b), the motion alleging CUE in a prior Board decision 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 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 the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. It is noteworthy that § 20.1404(b) was amended effective July 10, 2001. See 66 Fed. Reg. 35902-35903; see also Disabled American Veterans et. al. v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upholding all of the Board's rules of practice involving CUE claims, except the last sentence of Rule 1404(b) that had stated "[m]otions which fail to comply with the requirements set forth in this paragraph shall be denied"). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). VA regulations set out what constitutes CUE in a prior Board decision and what does not. Generally, CUE is a very specific and rare kind of error, 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. 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). The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made; however, a special rule exists for prior Board decisions issued on or after July 21, 1992, which provides that the record existing when those decisions were made includes relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b). 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 C.F.R. § 20.1403(c). VA regulations include examples of situations that are not to be considered CUE: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, (2) a VA failure to fulfill the duty to assist, and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there was a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Finally, given the rigorous nature of CUE, the "benefit of the doubt" rule of 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102 does not apply to clear and unmistakable error claims. See 38 C.F.R. § 20.1411(a). The moving party has made many allegations of error and reported many problems with her attempt to reopen this claim. (Her claim was reopened and service connection for the veteran's cause of death was granted by a January 2005 RO decision.) It is somewhat difficult to understand exactly what errors she is alleging to be CUE (and why such errors are CUE), as opposed to simply erroneous information she has been given in her attempt to reopen the claim. The Board notes that most of the errors or problems she assigns to the case, even if true, are of no consequence whatsoever. The Board will address all the allegations of error, as understood by the Board (again, it is difficult to understand exactly what she is alleging to be the basis of the CUE claim). The main argument appears to be that VA should not have found the veteran's action to be willful misconduct when the service department indicated that the accident was in the line of duty and the coroner found the death to be accidental. The law and regulation applicable at the time of the 1991 Board decision provided that an injury or disease incurred during service is generally regarded to be in line of duty unless it was the result of the veteran's own willful misconduct. 38 U.S.C.A. § 105 (West 1988 & West Supp. 1990). In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct. 38 C.F.R. § 3.1(m) (1991). A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. Id. Willful misconduct means an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum). A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1 (n) (1991). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of that person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2) (1991). While neither the line of duty determination or the coroner's report mention the veteran's intoxication as the proximate cause of the accident, the Board finds that there was a reasonable basis for the Board's 1991 decision in finding that the veteran's death was proximately caused by his intoxicated condition. First, the August 1989 coroner's report clearly notes that laboratory findings indicated that the veteran was intoxicated at approximately twice the legal limit. The deputy coroner, after reporting this fact, goes on to state that it was their office's opinion that the veteran's death was the result of internal thoracic hemorrhage due to blunt trauma resulting from a motorcycle accident. The jury, tasked with finding whether the veteran's death was due to homicide, suicide, accident, or an undetermined cause, agreed with the deputy coroner and found that the death was due to internal thoracic hemorrhage due to trauma from the motorcycle accident. The jury concluded that the death was accidental. This finding was not inconsistent with the Board's finding. The Board's decision did not find that the death was due to anything other than an accident; it was not found to be due to suicide or homicide. Further, the Board's decision does not indicate that the death was caused by anything other than the injuries sustained in the motorcycle accident. The only finding by the Board that was not indicated in the coroner's report is that the cause of the accident was the veteran's intoxicated condition. The coroner's report simply did not make a determination on this matter at all. At the coroner's hearing, the investigating officers reported their findings, which were that the accident resulted from the veteran striking the back of a truck. No opinion was given as to why the veteran struck the truck. While the accident report did not mention anything about the veteran's intoxicated condition, this cannot possibly serve as a basis for finding that he was not intoxicated. At the time of the accident, the veteran was lying on the street and the focus was to save his life, not to determine if he was intoxicated. That fact was later established at the hospital and the moving party herself has indicated that the veteran's intoxicated condition was not being contested. (See moving party's March 2004 statement, in which she states that she has never disputed the veteran's intoxicated condition at the time of his death.) The moving party provides various arguments as to why the truck driver may have been at fault. However, evidence of fault on the truck driver's part was simply not shown at the time of the 1991 Board decision. Since such evidence was received after the decision, it cannot be considered as part of the CUE motion. With regard to the line of duty determination report, the Board again notes that the report provides no opinion as to whether or not the veteran's death was in line of duty, as the investigating officer was not authorized to address this question. (See July 1989 commanding officer's appointment letter.) The investigating officer made findings of facts in the case. These findings included a determination that it was assumed that the veteran lost control of his motorcycle and hit the rear of a trailer being pulled by a semi-truck, and that an alcohol blood test was conducted at 0030 hours (12:30 a.m.) on July [redacted] 1989, which showed an alcohol content of .202. (The medical records actually indicate that the blood was drawn at 2300 hours or 11:00 p.m.) No opinion was given as to whether the death was in line of duty. Although there is an administrative message which indicates that the veteran's death was in line of duty, no basis for this finding is shown. Without any other reasonable explanation as to the cause of this tragic accident, the Board finds that it was very reasonable for the Board to conclude that the accident was proximately caused by the veteran's intoxicated status. The veteran's intoxicated condition appears to be the most reasonable explanation for striking the back of a truck on a clear evening with hardly any traffic on the road. The applicable regulation provides that a service department finding that death occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). Given that neither the coroner's report nor the line of duty investigation address the reason for the accident, and the administrative message finding of in line of duty provides no basis whatsoever for its finding, it was more than reasonable for the Board to conclude that the service's finding of in line of duty was patently inconsistent with VA laws. Since any disagreement with that finding amounts to a disagreement with how the Board in 1991 chose to weigh the facts and the significance of the veteran's intoxicated condition, these allegations do not amount to CUE. The moving party points to numerous specific things as her basis that the Board's finding of willful misconduct was erroneous. She mentions that there were no direct witnesses to the accident, other than the truck driver who saw sparks behind him. The truck driver did not believe he was struck by anything and denied any involvement in the accident. The truck's lights were not checked on the evening of the accident and the truck driver was not tested for alcohol or drugs. It was determined three weeks after the accident that the veteran possibly hit the back of the truck as there was damage to the rear of the truck and the accident report was changed from involvement of one motor vehicle to two motor vehicles. The truck driver did not appear at the coroner's inquest, although it was determined that the truck was overloaded on the evening of the accident (the record does not indicate that the truck was overloaded). Speed was not a factor as it could not be determined since there were no witnesses to the accident. The veteran left 21 feet of skid marks, indicating that he attempted to stop. The veteran owned the motorcycle for only four months, indicating he was not experienced. The accident report did not indicate that he had been drinking. His blood alcohol was not tested until three hours after death (this assertion is incorrect). The truck driver's actions on the evening of the accident, and whether he did something to cause the accident, are unknown. The Board finds that these assertions essentially amount to no more than a disagreement with the way the facts were weighed by the Board, which cannot constitute CUE. The moving party also asserts that the Board stated that the veteran was driving his motorcycle while intoxicated, a known act of wrongdoing prohibited by law. However, the Board decision also states that mere technical violation of police regulation or ordinances will not per se constitute willful misconduct. Both of these statements were indeed made by the Board and they are neither contradictory nor unsupported by the evidence or law/regulations. There is no basis for CUE with these allegations. The moving party further states that the Board noted that organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. She claims that the veteran was an alcoholic and was due to attend rehabilitation. While the veteran may have been an alcoholic, the above regulation has no bearing on the cause of the accident being due to willful misconduct. His alcoholism is not an organic disease secondarily caused by alcohol abuse. This allegation is not a basis for CUE. The moving party asserts that the Board found that the veteran lost control of his motorcycle, but the coroner's report found that he did not lose control of the motorcycle. The coroner's report indicates that one of the investigating officers indicated, after checking the motorcycle, it was felt that the veteran did not lose control of the vehicle, but rather it had to have hit something. After looking at the motorcycle and the truck, "we [the investigating officers] are determined in our own mind that the front of the motorcycle . . . struck the ICC bar on the semi, bending the bar, causing the accident." (See p.15 of the August 1989 report of the coroner.) This appears to be more semantics than anything substantive. It appears that the police had originally felt that perhaps the veteran lost control of his motorcycle as a result of something in the road. Later, after discovering damage to the back of the truck, the police officer stated that the veteran did not lose control of this motorcycle, but that the accident was due to him striking the truck in front of him. The Board stated that he lost control of his motorcycle and struck the truck in front of him. In either event, his death was due to the accident which resulted from striking the truck in front of him, which is what the Board found. Without any explanation from the police officer as to why the veteran struck the truck in front of him, it was more than reasonable to find that there was loss of control of the vehicle (or some other oversight or fault) on the veteran's part in striking the truck in front of him. Again, under the facts of this case, his intoxicated condition appears to be the truly reasonable explanation for striking the back of the truck. The moving party further claims that many items are missing from the claims folder. She reports that the veteran was honorably discharged, but his DD Form 214 is not of record. This, however, is of no consequence as the service records associated with the claims file did note that his death was in line of duty. The moving party also claims that she submitted a copy of a telephone bill and a statement from her sister. She also presented other evidence at a hearing which showed that the truck that the veteran hit on the night of his death was doing approximately 17 miles per hour in a 55 mile per hour zone. This is apparently based on the police report's finding that the truck was 60-70 feet from the accident scene. She reports that a loaded truck going 55 miles per hour would take more than 400 feet to stop. Also, the veteran hit the driver's side of the truck; thus, he must have been trying to go around a slow moving truck. He also had 21 feet of skid marks. This meant that he tried to avoid the accident. Her sister's statement, which is missing, indicates that the towing company called two days after the accident and told her that the veteran had braked so hard that he left impressions of his jeans on the gas tank on his motorcycle. They also stated that the tire was deflated and the towing company felt that that may have been from him locking up brakes so fast and hard. Therefore, she asserts, alcohol was not a factor in this accident. She stated that a slow moving truck, at night, without having its flashes on is a hazard to any sober driver also. Thus, this was not willful misconduct. With regard to the missing evidence, the moving party has not put forth any of this evidence even now. The Board's 1991 decision makes no reference to any of this alleged information. Without any reference to such records in the 1991 Board decision and without any other evidence to indicate that such records ever existed, other than the moving party's assertion, the Board cannot conclude that such documents were ever part of the record. As to the other allegations, the Board finds that these amount to no more than a mere disagreement with the way the facts were weighed, and cannot constitute CUE. Moreover, these allegations presented in the context of her motion for CUE cannot be considered in determining the correctness of the Board's 1991 decision, since they were not of record at that time - rather, they represent the appellant's current arguments as to how certain facts in the record in 1991 (and some not such as the speed of the truck involved) should have been interpreted by the Board. The moving party also is of the opinion that her original application for benefits was approved, and that through some type of fraud, someone else had been receiving benefits to which she was entitled. As the basis for this opinion, she cites to numerous things. She notes that her original application for benefits was filed in August 1989, but that the application was lost and she was required to re-file another application for benefits. Throughout the years, her claims have been designated with a C number, an SS number, an XC number, and an XSS number. Her claim was supposedly being worked on by the RO from August 1989 to December 1989, but, at the same time, the RO has indicated that her claims file was lost from August 1989 to February 1990. There are typographical or font errors/discrepancies in some of the documents within the claims file. The claims file indicates that a Chief H. made an inquiry on the moving party's behalf. However, she claims that she has spoken to Chief H. and he never made such an inquiry. Chief H. also indicates that the area code which was recorded is the wrong area code for Chicago. Her claim was noted to be a disability claim, and not a death claim. She also states that there was not one form in the claims file that was completed in her handwriting, although it is her signature on each of the referenced documents. The application for benefits that is on record is not in her handwriting; the only thing in her handwriting on the application for benefits is her signature. Also, it states that she began receiving Social Security benefits in September 1989, but she began receiving such benefits in August 1989. She also makes an allegation that she did not appoint the Disabled American Veterans as her representative, but that they were appointed for her. The Board finds no evidence to indicate that the moving party's claim was previously granted or that funds belonging to her were being diverted. The record does not show any evidence of fraud and none of these assertions are indicative of CUE. The moving party also alleges that she and her mother testified at a travel Board hearing on September 11, 1990. She asserts that the presiding official advised her that they were from the Board of Veterans' Appeals. In addition, she states that she received a denial from the Board sometime before May 1991. This decision had signatures of three Veterans Law Judges that are different from judges who signed the August 1991 decision. She further claims that the docket number noted on the August 1991 Board decision cannot be correct as she has been advised by the Board that it is too high. The Board has thoroughly reviewed the record and finds that these allegations are without merit. The claims file and research of the Board's records indicate that a hearing before a Veterans Law Judge was not conducted in September 1990. Rather, the moving party appeared and testified at a hearing before the RO in July 1990. Further, the August 1991 Board decision makes no reference to a Board hearing or a prior Board decision. Archived records also do not show the existence of a Board hearing or prior Board decision. Further, while she alleges the existence of such a Board decision and gives the exact names of the Veterans Law Judges that allegedly signed the prior Board decision, she has failed to provide the Board with this alleged earlier Board decision. With regard to the incorrect docket number, research of the Board's records indicate that there is no basis to this allegation and that the docket number is indeed correct. The evidence of record does not indicate the presence of any of the alleged discrepancies and a CUE is not found based on this allegation. Other assertions the moving party makes is that the April 1990 RO denial letter makes reference to a report from the Navy Judge Advocate Generals' (JAG) office, but that there is no such report in the records. The referenced JAG report pertains to the line of duty investigation report and the designation/endorsements by the commanding officer, which were forwarded to the JAG office. This document is contained in the claims file. The moving party asserts that the September 1990 VA Form 9 is not in her handwriting, but that the signature is hers. Also, box 7 (date of decision being appealed) and box 8 (VA office which made the decision being appealed) on the Form 9 are not completed. In addition, box 9 indicates that she did not wish to appear at a hearing. Yet, she did report for a hearing. The fact that Box 7 and Box 8 are not completed is of no consequence whatsoever. Box 9 refers to her desire to appear at a hearing before the Board, which indicates that she did not. As previously explained, she appeared at an RO hearing, not at a hearing before the Board. Thus, this is not inconsistent with the record. As to the Form 9 not being completed in her handwriting, this also is not out of the ordinary as representatives often complete the forms and have the appellant sign it. She has confirmed that the signature is indeed hers. Therefore, these allegations also do not serve as bases for a finding of CUE. The moving party alleges error with the Board's decision because she has found numerous other Board decisions where the RO decision of willful misconduct was overturned. She claims that the Board made these findings because it could not be determined with any degree of confidence that alcohol intoxication or any other deliberate or intentional act of wanton or reckless nature by the veteran was the cause of his death. The Board has reviewed these other decisions and notes that the facts and circumstances of each decision are different from the present case. Further, Board decisions are not precedential. Thus, any other decisions by the Board have no bearing on the current claim. Therefore, this allegation does not serve to overturn the August 1991 Board decision. The moving party asserts that her representative, in a 1991 brief, made reference to a book by Cyril H. Wecht, M.D., but that the book was not released until 1992. Although reference to this book was to her benefit, she believes the year was changed by someone. However, if reference to this book was to her advantage, then a claim of CUE on this basis could not stand. As to whether this is somehow indicative of fraud or discrepancy that indicates that someone else was receiving her benefits, the Board does not find evidence of this. The moving party alleges that her representative's presentation, which was prepared in 1991, makes reference to 38 C.F.R. 3.301(c) (1992), but that section (c) was not revised until 1992. The Board has reviewed 38 C.F.R. § 3.301(c) and finds that the 1991 and 1992 versions are identical. The moving party also alleges that the representative stated that the veteran's blood alcohol test did not occur until 3.5 hours after death, but that the Board decision states the test was only 1 hour and 15 minutes after death. Review of the record indicates that the veteran was pronounced dead at 9:44 p.m. on July [redacted], 1989. A patient's progress report from St. Therese Medical Center indicates that the veteran's blood alcohol draw took place at 2300 hours (11:00 p.m.), which is approximately one hour and 15 minutes after the time of death. The laboratory report indicates that the report was prepared at 2340 hours (11:40 p.m.), and showed a blood alcohol level of .202. The Board's decision was therefore correct in its factual findings. Any mis-statement by the representative is not shown to have any impact on the outcome of the Board's 1991 decision as the Board considered the correct facts. The moving party states that the Board's decision references a second drawing of blood which showed a blood alcohol level of .169 percent. She claims CUE because there is no such report in the claims file. However, review of the evidence indicates that a blood draw was conducted on July [redacted], 1989, at 1:00 p.m., by the coroner's office, and that the blood alcohol level was .169 percent. The moving party alleges that the Board decision uses a slang word "drunk" and refers to a fermentation process which she has never heard of. She also claims that she has spoken to the representative and he claims that he did not recall giving any such evidence regarding fermentation. There is simply no basis for finding of CUE by use of the word drunk. Further, she has not provided any basis that the Board's decision would have been different but for the representative's reference to this fermentation process or that her lack of knowledge of this is in any way a basis for CUE. In fact, the representative's assertion with regard to this matter was provided to strengthen the position that the veteran was not intoxicated, which was advantageous to the moving party. The assertion that the representative does not recall, over a decade later, that he provided such an argument is no basis for a finding of CUE. There is no merit to these allegations as a basis for a finding of CUE. The moving party further alleges that her representative did not have her claims folder from May 1990 until February 1994. Therefore, they could not have prepared any statements during this time. It appears that the moving party is referring to entries made on a VA Form 3025 (Missing Folder, Rebuilt Received, Original Found), which notes entries from 1990 to 1994. Regardless of the entries on this form, there is no reason to find that the representative did not prepare the statements (in September 1990 and April 1991). Review of these statements clearly indicates that the representatives were well-aware of the evidence in the record and that their presentation was based on this evidence. Further, there is no reason to find that the 1991 Board decision would somehow be different because of this and the moving party has not provided any basis to find CUE even if her assertions were true (which the Board does not find to be true). The representative's statements were presented to bolster her case for service connection for the cause of death and the Board fails to understand any basis for CUE here. The moving party reports that she was told by RO and Board personnel that her application for benefits could not be located, that there was no record of the denial in the computer systems, and that the claim had never been at the Board. Any misinformation by RO or Board personnel subsequent to the Board's 1991 decision cannot serve as a basis for CUE. CUE claims are based on evidence at the time of the alleged erroneous decision. The moving party has indicated that the address noted on her 1990 application for benefits was her parents' address, and that she no longer resided at that address at the time of the application. She reports that the denial letter was sent to her parents' address. She has not indicated, however, that she did not receive the denial letter. Further, it appears that the representative provided her current address to VA in the April 1990 notice of disagreement and that the SOC was sent to the correct address. Thus, she was well-aware of the RO's decision and findings. She has not indicated that this letter being mailed to her parents' address resulted in any prejudice whatsoever or that the outcome of the Board decision would have somehow been different because of this. Thus, there is no finding of CUE on this basis. The moving party reports that on a Form 21-6789, it indicates that her claim was for a disability benefit, not death. This has no bearing whatsoever on the Board's 1991 decision. The moving party alleges that a VA Form 119 indicates that VA spoke with a Chief H. However, she has spoken to Chief H. and he stated that the Navy never called the VA and the Navy never received any calls from VA. He also pointed out the area code for Chicago was not 708 but 312. Plus, he was the master CACO and he would have been the only one to send records to the VA, not Lt. R. The referenced VA Form 119 (Report of Contact) is dated in March 1990. It indicates that the VA contacted the moving party to obtain a line of duty determination, but that she did not have one. A call was also placed to Chief H., but he was not in and a message was left for him to call back. Subsequently, a call was received by Lt. R., who indicated that the requested report would be sent. A notation indicates that the JAG report was received in March 1990. A JAG report, which includes the line of duty investigation report, is contained in the claims folder, and is date stamped as having been received in March 1990, as indicated on the VA Form 119. The Board is unable to understand what the appellant's allegation of error is and how such error, even if true, would have any impact on the outcome of the Board's 1991 decision. There is no basis for the Board to find that the contents of the VA Form 119 are incorrect. Even if the 708 area code noted on the form is incorrect, it does not necessarily mean that the correct number was not later obtained or that contact with Lt. R. was not made. The appellant asserts that she has been informed by attorneys at the Veterans Consortium that she should have received a supplemental statement of the case (SSOC) and that this was a significant oversight. The record indicates that a statement of the case (SOC) was issued in May 1990. Subsequently, a hearing was held in July 1990, at which time the moving party and her mother presented testimony. No other evidence, other than their testimony, was provided. Subsequently, the hearing officer rendered a decision, dated in August 1990, which considered the testimony, as well as other evidence previously considered in the SOC. Subsequent to the hearing officer's decision, no other evidence was submitted. The applicable regulation provided as follows: A supplemental statement of the case, so identified, will be furnished to the appellant and representative, if any, when additional pertinent evidence is received, when a material defect is discovered, or when, for any other reasons, the original statement is inadequate under the requirements of Rule 20 (§ 19.120). A supplemental statement of the case will also be issued following development pursuant to a remand of the Board. A supplemental statement of the case is not required following a hearing on appeal before field personnel when no additional pertinent evidence is received, when a material defect is not discovered, or when the original statement is adequate under the requirements of Rule 20 (§ 19.120). 38 C.F.R. § 19.122 (1991). In this case, no additional evidence was submitted after the issuance of the SOC. Therefore, there is no violation of procedural due process under the applicable regulation. The moving party asserts that the claims file was sent to the Board approximately eight months before the decision was made. She claims that according to the VA handbook, the file is not sent until 60-90 days before the Board's decision. Thus, even if she wanted to present additional evidence, the file was already gone. As she has provided no evidence or information to indicate that she would have had additional pertinent evidence to present had the case remained at the RO, and that the outcome of the Board's 1991 decision may have been different had she had this opportunity, there is no need to determine whether there was any violation of the VA handbook. She has not presented any indication that this VA action, even if a violation of the VA handbook, constitutes CUE. The standard of review the Board is obligated to apply is whether the Board's conclusion in 1991 was clearly and unmistakably erroneous. In short, if there was a basis in the record for the Board's conclusion that willful misconduct was the proximate cause of the veteran's death, then there is no CUE. Although other reviewers, such as the Decision Review Officer that ultimately granted the claim, may have viewed the facts differently, the Board cannot now, on collateral review of the prior decision, try to decide what weight should have been afforded certain facts versus others. In other words, there was a factual basis in the record for the Board's conclusions, as discussed above. Therefore, it cannot be said that the Board's denial of the claim in 1991 was clearly and unmistakably erroneous. Accordingly, the Board concludes that the August 1991 Board decision was not clearly and unmistakably erroneous to the extent that it denied service connection for the cause of the veteran's death. The correct facts were before the Board, and the appellant has not provided persuasive reasons why the outcome of the decision would have been manifestly different if the alleged errors had not been committed. ORDER An August 12, 1991, Board decision did not contain CUE in determining that service-connected death benefits were barred because the veteran's death in July 1989 resulted from his own willful misconduct, and the motion to revise or reverse that decision is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs