Before Newman, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Gajarsa, Circuit Judge.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. Domenique Kirchner, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Kerwin E. Miller, Staff Attorney, Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims Judge Donald L. Ivers
Mr. Trinidad G. Bustos appeals the April 1, 1998 decision of the United States Court of Appeals for Veterans Claims, *fn1 No. 96-1567, affirming the decision of the Board of Veterans' Appeals (the "Board"), which denied his claim of clear and unmistakable error ("CUE") in a prior rating decision. We affirm.
Mr. Bustos served on active duty with the Army from October 1969 to August 1972. In 1986, Mr. Bustos submitted a claim for post-traumatic stress disorder ("PTSD"). In a June 1986 regional office ("RO") decision, he was denied service connection for PTSD. Because of his prior history of drug and alcohol abuse, he was also denied service connection for alcohol and substance abuse. Mr. Bustos was subsequently treated for PTSD and alcohol abuse during the summer of 1987. He was hospitalized several times from July 1987 to February 1988 and was diagnosed with PTSD, alcohol dependence, and polysubstance abuse. An April 1988 treatment record indicated that he had received intensive treatment for PTSD. In a June 29, 1988 rating decision, he was granted a non-compensable rating for service connection for PTSD effective 1984. However, he was denied service connection for alcohol and substance abuse.
In 1990, Mr. Bustos attempted to re-open his claim. The RO granted him a 30% disability rating for PTSD, but continued to deny service connection for alcohol and substance abuse. Eventually, he received a 100% disability rating for PTSD, but was never granted service connection for his alcohol and substance abuse. Mr. Bustos contended that there was CUE in the June 29, 1988 RO rating decision because the RO failed to consider entitlement to service connection for drug and alcohol abuse as secondary to PTSD. On September 26, 1996, the Board of Veterans' Appeals determined that there was no CUE in that rating decision.
The Court of Appeals for Veterans Claims affirmed the decision of the Board. The court explained that, even if the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error is not CUE. The court also stated that a claim of CUE based on a previous adjudication's improper weighing of the evidence cannot meet the criteria for CUE. In applying these standards to Mr. Bustos' case, the court considered his argument that the RO and the Board had not specifically discussed evidence which existed at the time of the 1988 rating decision. The court held that, even if the evidence cited by Mr. Bustos had been considered, it would merely put the totality of the evidence in equipoise; it would not "manifestly change" the result of the rating decision. Thus, because the error would not have "manifestly changed" the outcome of his original rating decision, Mr. Bustos had not demonstrated CUE with respect to the 1988 rating decision. Mr. Bustos appeals.
Our review of decisions of the Court of Appeals for Veterans Claims is limited. Under 38 U.S.C. § 7292(c), we have the exclusive jurisdiction to "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under [section 7292], and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." We have the authority to decide all relevant questions of law and can set aside a regulation or an interpretation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure required by law. See 38 U.S.C. § 7292(d)(1) (1994). Except to the extent that an appeal presents a constitutional issue, we may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. See 38 U.S.C. § 7292(d)(2) (1994).
Generally, ratings decisions by the Department of Veterans Affairs are deemed "final and binding . . . as to Conclusions based on the evidence on file at the time the VA issues written notification" of a decision. 38 C.F.R. § 3.104(a). An exception to this rule is found in another regulation that allows a ...