Citation Nr: 0710019 Decision Date: 04/06/07 Archive Date: 04/16/07 DOCKET NO. 04-22 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a November 1989 VA Administrative Determination concluding that injuries sustained by the veteran in a November 7, 1963, in-service automobile accident were due to his own willful misconduct contains clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from October 1962 until February 1964. He was discharged "under honorable conditions," as indicated in his DD Form 214. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 1989 Administrative decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. In a November 1989 Administrative Decision, the RO determined that the veteran's November 1963 in-service automobile accident was the result of willful misconduct. 2. While the November 1989 Administrative Decision contains no errors of fact concerning the circumstances concerning the November 1963 automobile accident that would have resulted in a manifestly different result. 3. There is no showing that the RO misapplied the law, as it existed at the time of the November 1989 Administrative Decision CONCLUSION OF LAW The November 1989 Administrative Decision which denied entitlement to service connection for a psychiatric disability did not contain CUE. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2005); 38 C.F.R. § 3.105 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)). VCAA includes an enhanced duty on the part of VA to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits and which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA. See 38 U.S.C.A. § 5103(a) and (b) (West 2002 & Supp. 2005). Also see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 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). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Smith v. Gober, 14 Vet. App. 227, 231-32 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc) (VCAA not applicable to CUE claim). Furthermore, an allegation of CUE is fundamentally different from other VA adjudicative determinations since it is not by itself a claim for benefits but rather a collateral attack against a prior final decision. Livesay, supra. Thus, an individual seeking a revision of a final decision based upon CUE pursuant to 38 C.F.R. § 3.105(a) is not a "claimant," as defined by 38 U.S.C. § 5100. Consequently, for all of these reasons, the VCAA is not applicable in the present case. Discussion In the present case, a November 1989 VA Administrative decision found that the injuries sustained by the veteran in a November 7, 1963, in-service automobile accident were the result of willful misconduct. He did not appeal that determination and it became final. See §38 U.S.C.A. § 7105. An unappealed decision of the Regional Office (RO) or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. §§ 5109A, 7111 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.105, 20.1400 (2006). The CAVC has provided the following guidance with regard to a claim of CUE: In order for there to be a valid claim of 'clear and unmistakable error,' there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). The CAVC in Russell further stated: Errors that would not have changed the outcome are harmless; by definition, such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self- defining. They 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. A determination that there was a 'clear and unmistakable error' must be based on the record and the law that existed at the time of the prior AOJ [agency of original jurisdiction] or Board decision. Russell, 3 Vet. App. at 313-314; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213 F.3d 1372 (2000). The Board wishes to emphasize that the CAVC 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). "'Clear and unmistakable error' requires that error, otherwise prejudicial, must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must always be remembered that clear and unmistakable error is a very specific and rare kind of 'error'." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell, Fugo and other decisions, the CAVC has emphasized that merely to aver that there was CUE in a rating decision is not sufficient to raise the issue. The CAVC has further held that simply to claim CUE on the basis that previous adjudications had improperly weighed the evidence can never rise to the stringent definition of CUE. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell at 314. Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). Where evidence establishes CUE, the prior decision in question will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Here, the November 1989 RO Administrative Decision being challenged on the basis of CUE considered facts from the veteran's personnel record showing that he misappropriated a government vehicle from a guarded motor pool, traveled in such vehicle at an excessive rate of speed and failed to negotiate a curve, running off the road near Bann, Germany. He was thrown from the car, and suffered head injuries and contusions of the face as a result. The RO also indicated that the veteran was Absent Without Leave (AWOL) at the time of the accident. Relying on such facts, the RO determined that the veteran's actions constituted willful misconduct, which was defined as a deliberate or intentional wrongdoing with the knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). Following a review of the record, the Board finds that the November 1989 Administrative Decision does not contain CUE. The reasons and bases for this finding will be discussed below. As noted previously, one means of establishing CUE is to demonstrate that the correct facts, as they were known at the time, were not before the adjudicator at the time of the final decision being challenged. See Russell v. Principi, 310, 313 (1992). In the present case, the veteran has disputed the RO's finding that he was AWOL at the time of the motor vehicle accident in November 1963. Indeed, in his July 2003 notice of disagreement, he explained that at the time in question he was on maneuvers in Germany, awaiting orders to return to the United States after the completion of Operation Big Lift. The Board notes that a December 1963 in-service psychiatric examination reports that the veteran was "absent without authorization for a short period of time." The final administrative determination by the service department as reflected by a February 3, 1964 document signed by the Adjutant General reflects the finding that the injuries were sustained while the veteran was AWOL and the final determination was "Not in line of duty-not due to misconduct". Thus, based on the foregoing, it does appear that all of the correct facts were considered at the time of the November 1989 Administrative Decision. To sustain a finding of CUE, it must be demonstrated that, if not for a factual misunderstanding, the outcome would have been manifestly different. Fugo at 44. Put another way, to achieve CUE it must be undebatable that, without such error, the challenged outcome would have been incorrect. If there is even the slightest basis for a reasonable mind to reach the challenged conclusion, then it must stand, even if it was arrived at based on an incorrect application of law or fact. Here, the Board finds that the veteran's dispute as to his AWOL status does not carry a finding of CUE in the RO's determination. Moreover, other facts considered by the RO, such as the veteran's misappropriation of a government vehicle, have been verified. Based on such facts, it is certainly conceivable that a reasonable person could have found the veteran's actions to constitute willful misconduct. In reaching the above conclusion, the Board recognizes the comments made by the veteran's accredited representative at his October 2006 hearing before the undersigned which challenge the factual premise that the veteran's excessive speed was a factor in the November 1963 car accident. The representative explained that black ice was a common occurrence on the roads in Germany in November, when the accident occurred. He cited this ice, the veteran's unfamiliarity with the roads, and wet weather conditions as factors leading to the accident, rather than excessive speed. The representative added that the speed of the vehicle would have been irrelevant under the conditions described above, because an accident would be equally likely whether "going 200 miles per hour or five miles an hour." It was further noted that the veteran was not under the influence of drugs or alcohol at the time of the accident, a fact confirmed by the police report. While acknowledging the contentions detailed above, they can not serve as a basis for a finding of CUE in the November 1989 Administrative Decision. Indeed, the RO weighed the evidence as it then existed and determined that the record demonstrated that the veteran was traveling at an excessive rate of speed. While the veteran may disagree with that finding, his opportunity to appeal that decision has already passed. As emphasized in Russell, Fugo and other decisions, a CUE claim can never be raised on the basis that previous adjudications had improperly weighed the evidence. Again, the question in a CUE claim is not whether it was simply possible for another conclusion to have been reached at the time of the challenged decision, but instead is whether another conclusion was compelled. Here, even considering the arguments raised by the veteran, it is entirely possible that a reasonable person would find, based on the evidence of record, that excessive speed played a part in the accident and that such reckless driving constituted willful misconduct. Another means by which to establish CUE is to demonstrate that the adjudicator incorrectly applied the statutory or regulatory provisions extant at the time. See Russell v. Principi, 310, 313 (1992). Moreover, such misapplication must result in an error that is undebatable, such that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. Here, the veteran has not claimed that there was any misapplication of the law as in effect at the time of the November 1989 Administrative Decision. Indeed, the definition of willful misconduct set forth in that determination is an accurate statement of the law. Thus, there is no showing that the RO misapplied the law as then in effect. In conclusion, the November 1989 decision, while based in part on incorrect fact, nevertheless contains a supportable conclusion that the veteran's November 1963 car accident involved willful misconduct. Moreover, it has not been shown that there was any misapplication of the law as then in effect. Accordingly, the veteran's CUE claim must fail. ORDER The November 1989 Administrative Decision finding that the veteran's November 1963 in-service automobile accident was the result of willful misconduct has not been shown to contain CUE. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs