UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 12-0949

J O H N T. K I N G , A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(Arg ued De cembe r 11, 2013 Dec ided Fe bruar y 26, 2014)

Kenneth M. Carpenter , of Topeka, Kansas, with whom K a r l A. Kazmierczak , of Oakland, New Jersey , was on the br ief, for the appe llant.
Selke t N. Cottl e , with whom W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; and Kenneth A. W alsh , Deputy Assistant G ener al Counsel, w ere on the brief, all of Washington, D.C., for

the appe llee.

Be fore HAGEL , L ANCE, and B ARTL EY, Judges

. HAGEL , Judge : J oh n T

. Ki n g appea ls throug h counsel a J anuar y 11, 2012, Boa

rd of Veter ans' Appea ls (B oard) decision that denie d his motion to revise a final J anuar y 1973 VA
reg ional office decision on the basis of cle ar a nd unmistakable err or. The 1973 decision g rante d a 10% disability rating for schizophrenia. Mr. King ' s Notice of Appea l was timely , and the Court has jurisdiction to revie w the Boa rd decision pursuant to 38 U.S.C. § 7252(a)

. This case was ref err ed to

a panel of this Court beca use the Court lacks a rec ent p re cede ntial opinion reg arding the interpre tation of whether an alleg ed err or would have "ma nifestly chang ed the outcome" of a Boa rd

or reg ional office decision in the context of clea r and unmistakable err or. Be ca u s e t h e Board' s deter mination that the J anuar

y 1973 reg ional office decision did not contain clea r and unmistakable

err or is not arbitra

ry , capr icious, an abuse of discretion, or otherwise not in acc ordanc e with law, andbeca

use the Boa

rd provided an adequate statement of rea sons or bases for its decision, the Court will aff irm the J anuar

y 11, 2012, Boa

rd dec ision. 1

I. BACKG ROUND Due to the proce dural history of this case , the Court finds that providing a short backg round will proper ly fra

m e t h e i s s u e ra ised by Mr. King

. I n J uly 1972, Mr. King filed a claim for VA disability benef

its. Record (R.) at 1876. I n J anuar y 1973, a VA reg ional office issued a decision that
g rante d Mr. King entitlement to VA disability benef its for schizophrenia and as s i gned a 10% disability rating . Mr. King did not appeal this dec ision and it became final. Mr. King now appea ls the J anuar y 2012 Boa

rd decision that denied his motion to revise the J an uary 1973 reg ional office decision on the basis of clea r and unmistakable err or. Mr. Ki n g underw ent a number of psy chiatric examinations betwee n 1973 and the date of the cu rr ent Boa rd decision under revie w; howeve r, only two examinations are rele vant to the prese nt appea l. The two rele vant repor

ts are that of Mr. King ' s private trea ting psy cholog ist, Dr. Michae l Rothburd, and VA phy sician Dr. Phill ip Ross, both conducte d in 1972 prior to the J anuar y 1973 rating decision. These

are t h e t wo examinations addre ssed by the parties and rele vant to the issues raised on appea l;

acc ording ly

the Court will lim it its rec itation of fac ts to these two medical opinions.

II. F ACTS Mr. King serve d on active duty in the U.S. Army

from Jul y

1969 to Dece mber 1971. I n J uly 1972, Mr. King filed a claim for VA disability benef its for a "ne rvous condition." R. at 1876. I n Aug ust 1972, Michae l Rothburd, Ph.D., a private psy cholog ist, diag nosed Mr. King with "[c]hronic undiffer entiated schizophrenia [pseudo-psy chopathic schizophrenia]" and "pa ss i ve ag g ressive pe rsonality

disorder." R. at 1862. Dr. Rothburd stated the f ollowing: [Mr. King ] seen in individual and family (x3) psy chother apy on a wee kly basis from Dec [ember] 1971 to May [] 1972, then in g roup psy chother apy on a spora[d]i c basis total[ ]i ng [si x ] g roup thera py sessions, until prese nt. I ndividual psy chother apy was

On Decem

ber 3, 20 13 , and Decem

ber 4, 20 13 , the Secretar y subm itted m otio ns to supplem ent the reco rd , 1

w hich w ere held in abeyan ce at that tim e. T he Court hereby g rants those tw o motions.
2terminated by mutual ag ree ment based on financ ial considerations, when Mr. King ' s

financ es beca

me seve re l y depleted and he wished to incur no further debt. His prog ress [un] til then was g radua l and positive. There has been a marke d decline following termination of individual ther apy and some, but not all[,] of his be havior patholog y has returned. Dur i n g t h i s course of t hera py , I ref err ed the patient t o Dr. J .B. Joy ce, a

n osteopathic psy chiatrist . . . for me dication. R. at 1862. Dr. Rothburd noted his clinical finding s and Mr. King ' s sy mptomology

as follows: Depe rsonalization, depre ssion, anxiety , para noid ideation, reg ression. I nability 1) to work, 2) i ntera ct with others, 3) rela te to peer s, [and] enter into a heter osexual rela tionship. Be havior disor d er re p rese nts a major disability for this patient He is fre quently incapa citated due to the psy chotic proportions of the d i s order [; ] howeve r[,] hospitaliz ation probably would be ineffe ctive. I nstitut ionalization would be a likely

result.
Id. Mr. King was hospitaliz ed at a VA medical cente r for psy chiatric conditions betwee n Aug ust 24, 1972, and September 1, 1972. R. at 1854. During this 7-day period, Mr. King was observe d by VA phy sician J .F. Ross, M.D., who repor ted hi s observa tions of Mr. King during that period. I n September 1972, Mr . King underw ent a VA psy chiatric examination. After revie wing Mr. King ' s

s o c ia l and medical history and conducting a phy sical examination, Dr. Ross diag nosed Mr. K in g w it h "sc hizophrenia, latent ty

pe." R. at 1854. The examiner also noted Mr. King ' s prog ress while in the hospital: Despite his alleg ed difficulty in rela ting to people[,] the patient seeme d to g et along very well with patients [i n] the war d. Then [si c] very astute observa tions about some of t he other patients and seemed unusually per[]ceptive. We discussed his anxiety about becoming involved in any kind of long term rela tionship, let alone a cl ose rela tionship and afte r cluing me to his appre hen sion about this[ ,] he went on [a]
wee kend pass a

nd returne d impulsi vely

to sign out ag ainst medical a dvice. Id. I n J anua ry 1 9 73, the reg ional office issued a decision g ranting Mr. King VA disability benef its for schizophrenia, with a 10% di sability rating

. R. at 1827. Mr. King did not appeal this decision, and it bec ame f

inal. I n September 2006, Mr. King soug ht to revise the J anuar y 1973 reg ional office decision on the basis of clea

r and unmistakable err or. R. at 648. Mr. King asser ted that the reg ional office err ed by failing to consider Dr . Rothburd's A ug ust 1972 opinion.

3I n Marc h 2007, the reg ional office issued a decision finding that the J anuar y 1973 reg ional office decision did not contain clea r and unmist ak ab l e er ror. Mr. King filed a Notice of Disag ree ment with that decision and ultimately appea led to the B oard. I n J anuar y 2009, the re gi o n al o ffice issued a Supplemental Statement of the Case (that
g ener ated the curr ent Board appeal) finding that the s y mptoms in Dr. Rot hburd' s repo rt descr ibed Mr. King ' s "pe rsonality disorder and [] VA does not consider personality disorder[s] a service [- ]connected disability ." R. a t 213. I n Aug ust 2010, the Boa

rd issued a decision fi n d i n g that the J anuar y 1973 reg ional office decision did not contain clea r and unmistakable err or. Mr. King appea led that decision to the Court. I n J une 2011, the Court g rante d the parties' joint motion for rema nd. The parties ag ree d that

a rema nd was nece ssary beca

use the Aug ust 2010 Boa rd err ed by apply ing the rating criter ia for
psy choneur otic, rathe r than psy chotic, disorder s. I n J anuar y 2012, the Boa

rd issued the decision on appea l, ag ain finding that the J anuar y 1973
reg ional office decision did not contain cle ar a nd unmistakable er

ror. This appe al followed.

III. ANALYSIS A. Natur e of a

Motion to R evise on the B asis of Clear and Unmistakable Error This case prese nts the Court with the opportunity to discuss and reiter ate in some detail our jurisprudenc e conce rning clea r and unmistakable err or. At the ou t s et, the Court emphasizes that clea r and unmista k ab l e err or is "a very specific and rar e kind of err or," and the burden of demonstrating clea

r and unmistakable err o r i s an o nerous one. 38 C.F.R. § 20.1403 (2013); see Berger v

. Brown , 10 Vet.App. 166, 169 (1997) ( "[T]he appellant, who a lway s bear s the burden of
persua s i on on appea ls to this Court, bear s an extra-heavy burden when the appea l is a collater al attack, in the form of [clear and unmistakable err or]

. . . . A final decision is entitled to a strong presumption of validity .")

. The Court has emphasized that "a n asser tion of clea

r and unmistakable

err or is a motion or a request , rathe r t h an a cl ai m
. " Hillyard v. Shinseki , 24 Vet.App. 343, 355 (2011). A "c laim" is "a formal or informal communication in writing reque sting a deter mination of entitlement or evidenc ing a b el i ef i n enti tlement, to a benef it." 38 C.F.R. § 3.1(p) (2013). An "inf ormal claim" i s "[a]ny communication or ac t i o n , indicating an int ent t o apply for one or m ore

4benef

its." 38 C.F.R. § 3.155(a) (2013). See Roebuc k v. Nicholson , 20 Vet.App. 307, 312–13 (2006) (def ining a claim as "a

n application for entitlement to a VA benef it based on a curr ent disability .")

. "B eca use a motion to revise based on clea r and unmistakable err or reque sts revision of a prior final decision, rathe r than entitlement to a benef it based on a curr ent disability , there can be no ' claim' for clea r and unmistakable err or." Hillyard , 24 Vet.App. a t 355. Although much of the Boa rd' s discussion in its decision on appea l nece ssarily rela ted to the J anuar y 1973 reg ional office decision, it is the 2012 Boa rd decision that is under revie w. The Court
must deter

mine whether the 2012 Boa rd decision that denied Mr. King ' s motion to revise the 1973
reg ional office decision on the basis of clea r and unmistakable err or was arbitra ry , capr icious, an abuse of discretion, or otherwise contra ry to law, or unsupported by adequate rea sons or bases. See Hillyard , 24 Vet.App. a

t 349; Eddy v . Brown , 9 Vet.App. 52, 57 ( 1996).

B. D ue Proce ss Arg ument Mr. King asser

ts that the Boa

rd violated his "due pro cess rig ht to fair adjudication of his claim for disability benef its pursuant to Cu s hman v. Shinseki , 576 F.3d. 1290 (F ed. Cir. 2009)." Appellant' s Br ief (B r.) at 12. Specifica lly , he contends that the reg ion al office failed in 1973 to consider Dr. Rothburd's opinion, there by "violat[ing]

. . . his constitutional rig ht to a fair hear ing of his claim." Id. at 14. I n Cushman , the U. S

. C o u rt o f Appea ls for the Fe dera l Circuit (F eder al Circuit) conclude d that "a veter an alleg ing a service -conne cted disability has a due proce ss rig ht to fair adjudication o f h i s claim for benef its." Cushman , 576 F.3d. at 1292. Cushman involved an appe al fr o m a Boa

rd decision that relied on a VA medical rec ord that the Secre tary admitted was impermissibly altere d to deny the appellant a total disability rating based on individual unemploy ability

. Id. at 1294-95. The Fe dera l Circuit concluded that " consideration of the altere d document instead of the unaltere d document in adjudicating [t he appellant' s] claim was a violation of hi s constitutional rig ht to a fair hear ing." Id. at 1300. Be cause "[t]he source of t he fundamental unfairne ss that tainted t he ini tial evalua tion of Mr. Cushman's claim was never removed .

. . none of the subsequent appea ls and rehe aring s that Mr. Cushman rec eived satisfied his due proce ss rig hts to a fa ir hea

ring on the merits of his disability claim." Id. at 1299. Her e, unli ke in Cushman , there is no indication that the document at iss ue, Dr. Rothburd's Aug ust 1972 examination repor t, was impermissibly altere d. Fur ther, althoug h Mr. King contends

5that the reg ional office in 1973 never considere d Dr. Rothburd's examination repor t in rende ring its decision, he cites no evidenc e that the reg ional office intentionally or unintentionally conce aled or ref used to consider that repor t or that VA otherwise failed to acc ord him due proce ss. As discussed in g rea ter detail later in this decision, failure to mention evidenc e in a decision made befor e Fe bruar y 1990 does not mean that the evidenc e was not considere d. See Eddy , 9 Vet.App. at 58 (holding that "silenc e in a final [reg ional office ] decision made befor e Fe bruar y 1990 cannot be taken as showing a fa ilure to consider

evidenc e of r ecor d")

. More importantly , howeve r, Mr. King fails to explain why any alleg ed err or of this ty pe, that is, failure to consider cer

tain evidenc e, could not be addre ssed and potentially cure d by his clea r and unmistakable err or motion to revise the J anuar y 1973 decision. After all, cl ear and unmistakable

err or may be based on an alleg ation of fac tual err or. Russell v. Principi , 3 Vet.App. 310, 313 (1992) (en ba nc). The Court theref

ore holds that " there is no due proce ss issue since, unlike the situation in Cushman , the statutes and reg ulations provide adequate re m ed y for any err or that occur red in prior proce eding s." Guillory v. Shinseki , 6 0 3 F. 3 d 9 8 1 , 987-88 (F ed. Cir. 2009); see Prinkey v. Shinseki , 735 F.3d 1375, 1384 (F ed. Cir. 2013) (" [VA] in adjudicating his claim, g ave him all the
proce ss tha t is constitutionally require d. I t a ffor ded him r epea ted opportunities to challeng e the

. . . medical opinions a s defic ient, in e videntiary foundation or in e x planation, and to submit his own
contra ry evidenc e. . . . Whatever

due proc ess re quires, it require s no more than that." ). C. Clear and U nmistakable Err or in the January 1973 Reg ional Offic e De cision Preliminarily , Mr. King asser ts that the J anuar

y 1973 reg ional office decision contains clea r and unmistakable err or beca use the VA exa mination on which the reg ional office relied "did not contain finding s on both [Mr. King ' s] social and industrial ada p t ab ility [] sufficie nt to allow the rating ag ent to make a corr ect disability rating ." Appellant' s Br

. at 8. I n substance, his arg ument is that VA failed to satisfy its duty to assist, in that it relied on an inadequa te medical examination. As this Court has made c lear , "V A' s brea ch of the duty to assist cannot form a basis for a [m otion for revision based on] [clear and unmistakable] err or beca use such a brea ch cre ates only an incomplete rathe r than an incorre ct rec ord." Caffrey v. Brown , 6 Vet.App. 377, 384 (1994); see also Cook v. Principi , 318 F.3d 1334, 1344–47 (F ed. Cir. 2002) (holding that a brea ch of the duty to assist cannot

6form the predic ate for a motion for re vision of a finally decide d claim based on clea r and unmistakable er

ror) . Consequently , Mr. King ' s arg ument is unpersuasive. Mr. King next asser

ts that Dr. Rothburd's 1972 repor t, even though in the possession of VA four months befor e th e 1 9 7 3 rating decision, was not befor e the reg ional office adjudicator , as evidenc ed by the fac t the J anuar y 1973 reg ional office rating decision is silent as t o i t s exis tence

. More specific ally he arg ues that "the inclusion of Dr. Rothburd's repor t in the evidenc e considere d by the [reg ional office ] in 1973 would have painted a truer picture of [hi s] disability , resulting in a disability rating far in excess of 10%." Appellant' s Br

. at 10. Mr. King further asser ts that the Boa

rd did not corr ectly interpre t and apply the t erm " undebata ble." Specifica lly , he contends that "the re

wer e two critica l medical assessments of [Mr. King ]: the one the [reg ional office ] based its decision

on and the one of Dr. Rothburd which was not considere d

. . . [and] if the missing doctor' s repor t had been considere d, a rea sonable person' s assessment would be considera bly differ ent." Appellant' s Br

. at 15. These arg uments are unpersua sive. 1. Requireme nts for Establ ishing Cl ear and Unmistakable E rror in a Prior Fi nal Decision A prior final reg ional office decision must be reve rsed or revised wher e evidenc e establishes clea r and unmistakable err or. See 38 U.S.C. § 5109A(a ); 38 C.F.R. § 3.105(a) (2013). Under this Court's long- standing prec edent, clea r and u n mistakable err or is established when the following conditions are met: Fi rst , either (1) t he correc t fac ts in the record were not befor e the adjudicator

or (2) the statutory or reg ulatory provisions in exis tence at the t ime wer e incorre ctly applied. Damrel v. Brown , 6 Vet.App. 242, 245 (1994). Second, the alleg ed err or must be "unde batable," not

mere ly "a disag ree ment as to how the fac t s we re we ighe d or evalua ted." Russell , 3 Vet.App. at 313-14. Finally , the commission of the alleg ed err or must have "ma nifestly chang ed the outcome" of the decision being attacke d on the basis of clea r and unmistakable err or at the time that decision

was rende red. Id. ; see Bustos v. W est , 179 F.3d 1378, 1380 (F ed. Cir. 1999) (expressl y adopting "ma nifestly chang ed the outcome" lang uag e in Russell ). Be cause the J anuar y 2012 Boa

rd decision d et er m i n ed that Mr. King di d not establish that the J anuar y 1973 reg ional office decision was t h e product of clea

r and unmistakable err or, Mr. King now car ries the burden of demonstrating that the Boa rd' s 2012 finding s wer e arbitra ry , capr icious, an abuse of discretion, or otherwise contra ry to law,

7or unsupported by adequate re asons or bases. See Hillyard , 24 Vet.App. at 349; Eddy , 9 Vet.App. at 57. 2. Facts Before the Adjudicator Rely ing on Bouton v. Peak e , 23 Vet.App. 7 0 (2008), Mr. King asser ts that the reg ional offi ce 's failure to specific ally mention Dr. Rothburd's opinion in its 1973 rating decision is proof positive that it failed to consider that repor t when assig ning his 10% disability rating

. This arg ument is unpersuasive. There is no question that the J anuar y 1973 reg ional office decision d id not expressly ref ere nce Dr. Rothburd's opinion. This, how ever , cannot be taken as proof that the reg ional office did not co n s i d er t h at opinion. Prior to Fe bruar y 1990, VA reg ional office s wer e not require d to provide a statement of rea s o n s o r b as es for their decisions, and the Fe dera l Circuit has held that
reg ional office decisions prior to that d at e are presumptively valid, even in the absenc e of such discussion. See Natal i v. Principi , 375 F.3d 1375, 1380 (F ed. C ir. 2004) (holding that statements of rea sons or bases in the reg ional office s' d ec isions wer e not require d prior to "the Veter ans' Be nefits Amendments of 1989, Pub.L

. No. 101–237, 103 Stat.2062 (1988), which ad d ed t he statutory provision mandating that decisions deny ing benef its include a statement of the rea sons for the decision" ); see also Eddy , 9 Vet.App. at 58 (holding that "silenc e in a final [reg ional office ] decision m ade before Fe bruar y 1990 cannot be taken as showing a fa ilure to consider evidenc e of

rec ord" ). Acc ording ly , "to establish [clear and unmistakable err or] in a pre- Fe bruar y -1990 [reg ional office ] decision, it must be clea r from the fac e of that decision that a pa rticular f act or law had not been considere d in the [reg ional office ' s] adjudication of the case ." Joyc e v. Nicholson , 19 Vet.App. 36, 46 (2005). There is no indication on the fac e of the J anuar y 1973 rating decision that the
reg ional office did not consider Dr. Rothburd's opinion, and the Court cannot conclude that it failed to do so on the basis of silence alone. See E ddy , 9 Vet.App. a t 58. Contrary to Mr. King ' s arg ument, Bouton does not chang e this analy sis. I n that case , the Court conclude d that the Boa rd err ed in finding t hat the reg ional office "e ng ag ed in a simple weig hing of the evidenc e" beca use it was cl ear that the reg ional office "de nied the exis tence of evidenc e in the claims file that did indeed exis t." 23 Vet.App. at 71 (re g ional office decision stated that " [t] here is no record of psy chiatric disability to include post-traumatic stress disorder showing

8a chr onic disability subject to servic e conne ction" w hen the rec ord conta ined evidenc e of ong oing depre ssion that was, at least in part, seconda ry to a service -conne cted back condition (empha sis added) ). Thus, in Bouton , it was not the failure on the part of the reg ional office to specific ally mention evidenc e of rec ord, but rathe r the fac t that the reg ional office denied outright the exis tence of fa vorable evidenc e. Id . That is not the case here

. Mr. Ki n g also contends that the Boa rd conce ded that the reg ional office in 1973 did not consider Dr. Rothburd's repor t. This arg ument also fails. Although the Boa rd ad m i ts that "the [reg ional office ] did not acknow ledg e the exis tence of evidenc e in the rec ord" (R. at 13) and, indeed, discusses Bouton , it does not, when re ad closely , contain a finding that the re g ional office in 1973 did not consider Dr . Rothburd's r eport. Rather , the best that can be said is that the Boa rd dec ision
p roceede d under the premise that eve n if the purported err or occurre d and Dr. Rothburd's o p i n i o n

was not considere d by the adjudicator in 1973, absent that err or it was no t u n d eb at able that the
reg ional office decision wo u l d h ave manifestly chang ed. R. at 13. Acc ording ly , the Court is not persua ded that the Boa

rd conclude d that the reg ional office failed to consider Dr. Rothburd's repor t but, even if it had, as explained below, that conclusion would not nece ssarily constitute clea r and unmistakable er

ror. See 38 U.S.C. § 7261(a)(3) (A); Eddy , 9 Vet.App. a t 57.

3. Manifest Change in the Outcome Assuming for the sake of arg ument t h at the reg ional office in 1973 failed to consider Dr. Rothburd's opinion, Mr. King also fails to persua de the Court that the Boa rd' s deter mination that Dr. Rothburd's statement would not have manifestly chang ed the outcome of the reg ional office decision is arbitra ry , capr icious, an abuse of discretion, or otherwise contra ry to law, or u n s u p p o rt ed by adequate rea sons or bases. See Hillyard , 24 Vet.App. at 349. The Boa rd rested its decision on the final prong of the Russell test: whether consider at i o n of Dr. Rothburd's repor t would "ma

nifestly chang e[] the out come" of t he decision being attacke d on the basis of clea r and unmistakable error at the time that dec ision was rende red. Russell , 3 Vet.App. a t 313; see Bustos , 179 F.3d a t 1380. I n the dec ision on appeal, the B oard state d: The Boa rd rec og nizes [Mr. King ' s] contention and his char acte rization of [t he issue:] that is, he is not in disag ree ment with the weig ht the 1973 [reg ional office ] g ave the evidenc e, but rathe r is contending that th ey s i m p ly did not consider rele vant evidenc e . . . . [ Howeve r,] the cr ux of this claim is [ whether ] i t is undebatable tha t

9Dr. Rothburd's Aug ust 197[2] re port would result in a conclusion that the evidenc e

"militated i n s u p p o rt of the claim" for a disability rating in excess of a 10 [%] disability rating . The B oard f

inds that the evidenc e is not undebata ble.
The probative value of the Aug ust 1973 VA narr ative summary is not discounted by Dr. Rothburd's repor

t to the deg ree wher e the Boa rd can find that "a ll evidenc e at the time of the decision ' milit ated in support of the claim.' " The [reg ional office ] could have found the narr ative summary persua sive in that [ M r. King ] was able to have rela tionships, howeve r superf icial, with ot h er s that discounted Dr. Rothburd's opinion. The Boa

rd cannot find that "but for" Dr. Rothburd's opinion, it is absolutely clea r that a diff

ere nt result would have ensued. The ref ore, the err or complaine d of cannot be , ipso facto , clea r and unmistakable

. R. at 14. "[T]o prove the exis tence of [clear and unmistakable err or]

. . . , the claimant must show that

an outcome- determinative err or occur red." Bustos , 179 F.3d at 1381 (empha sis added)

. Thus, a

m an i fe st chang e in the outcome of the adjudication means that, absent the alleg ed cle ar an d

unm i s t akable err or, the benef it soug ht would have been g rante d at the outset. Fugo v. Brown , 6 Vet.App. 40, 44 (1993) (" [E] ven wher e the premise of err or is acc epted, if it is not absolutely clea r that a differe nt result would h av e en sued, t he error complained of cannot be, ipso fac to, clea r and unmistakable." ); see also Crippen v. Brown , 9 Vet.App. 412, 421 (1996) (holding that, when a decision is attacke d on the basis of clea r and unmistakable err or, "the Boa rd would have to decide whether , had the error not been made , the outcome afte r reope ning—tha t is, on the merits —would have ' manifestly ' been chang ed" ); Mason v. Brown, 8 Vet.App. 44, 53 (1995) (holding that the Boa rd
must consider whether "the corr ection of the er ro r wo uld have [m anife stly ] chang ed the outcome—that is, that serv i ce co n nection would have resulted had the lay statements been considered .")

. A manifest chang e is not, for example, whether the reg ional office would have been require d to send the medica l report ba ck to Dr. Ross for c larifica tion, but ra ther that Mr. King undoubtedly would have been g rante d a disability rating g rea ter than 10% for his schizo p h re n i a. I n short, the Boa rd addre s s ed the probative value of Dr. Rothburd's Aug ust 1972 opinion but deter mined that,

even had the reg ional office considere d that opinion in 1973, the evidenc e of rec ord would not have

10been so unequivoca l that the outcome would undoubtedly be differ ent and, there fore , that the failure

to consider it is not clear

and unmistakable e rror . R. at 14. Finally , Mr. King arg ues that "the VA medical examiner' s repor t on which the [J anuar

y 1973] VA reg ional office based its decision was insufficient to deter mine a corr ect disability rating beca use the medical examiner' s repor t did not contain finding s on both [ M r. Ki n g' s] social and industrial adapta bility ." Appellant' s Br

. at 14. This may be construed as an arg ument that VA failed to satisfy its duty to assist and that it relied on an inadequate medical examination. As this C ourt has m ade cl ear ,"V A' s brea ch of the duty to assist cannot form a basis for a [m otion for revis i o n b as ed o n ] [clear and unmistakable] err or beca use such a brea ch cre ates only an incomplete ra t h er t h an an incorre ct re cord." Caffrey , 6 Vet.App. a t 384; see also Cook , 318 F.3d at 1344-47 (holding that a brea ch of the duty

to a ssist ca

nnot f orm the predic ate for a motion for revision of a finally decide d claim base d on clea

r and unmistakable err or). Mr. King ' s arg ument may also be parse d as an alleg ation that the Boa rd incorre ctly applied the statutory or reg

ulatory provisions in exis tence at the time beca use it ignor ed that part of the rating

cr i t eria that require d assessment of industrial impairment–which was contained solely in Dr. Rothburd's repor

t–and focuse d only on social impairment. Appellant' s Br

. at 14. Nonethele ss, there is still no evidence that, had the purported err or not occur red, the outcome of the decision would have ma nifestly chang ed. Mr. King admit s as m uch because he asserts that "[i]t is . . . reasona ble
to conclude that, had Dr. Rothburd's repor t been included in the evidenc e considere d by [t he reg ional office ], the [a] p p el l ant would have been awa rded a disability rating far in excess of 10%." Appellant' s Br

. at 7. Whether it is rea sonable to co n cl u d e t h at the outcome would have been differ ent is not the standard that must be met for a motion alleg ing clea r and unmistakable err or to

succe ed. The g overning law require s that the err or be "unde batable" and that the commission of the alleg ed err or must have "ma nifestly chang ed the outcome" of the decision. See Russell , 3 Vet.App.a t 313. As explained above, that is not the case here

. Th er efore, the Court cannot conclude that the Boa rd' s 2012 finding s wer e arbitra ry , capr icious, an abuse of discretion, or otherwise contra ry to law,

or that those finding s wer e unsupported by adequate rea sons or bases. See Hillyard and Eddy , both
supra
.

11IV. CONCLUSION

Although the Court is sy

mpathetic to Mr. King' s arg uments raised on appea l, revision of a final Boa rd or reg ional office decision is an extraordinary event. The Court cannot revie w a motion
to revise a prior, final decision under the same standard by which it revie ws matters on direc t appea l. As a result, there will be ti mes when the C o u rt arr ives at a differ ent conclusion when reviewing a motion to revise a prior, final decision than i t would have ha d the matter be en re viewed unde r the standards applicable on direc t appea l. Mr. King , at the time of the 1973 reg ional office decision, was aff orded the benef

it of the full panoply of rig hts that exis t when a claim is initially adjudicate d, and principles of finality prec lude him from invoking those rig hts at t h is time. The Court cannot say whether it would rea ch the same result had this case come befor e it on direc t appea l but, on revie w of his motion based on clea r and unmistakable err or, Mr. King has not demonstrated that the Boa rd' s assessment is arbitra

ry , capr icious, an abuse of discretion, otherwise not in acc ordanc e with the law,

see 38 U.S.C. § 7261(a) (3)( A), or otherwise inadequate ly ex p l ained, see 38 U.S.C. § 7104(d)( 1). Acc ording ly , the J anuar

y 11, 2012, Boa

rd dec ision is AFFI RMED.

12