Citation Nr: 0006117 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-05 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to benefits under Section 156 of Public Law 97- 377, the Restored Entitlement Program for Survivors. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from September 1965 to September 1972 and from August 1976 to March 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1995 decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied Restored Entitlement Program for Survivors. The Board remanded this claim in March 1998. The requested development has been accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. Service medical records reveal that the veteran was diagnosed with metastatic squamous cell carcinoma of the distal esophagus during service. 2. The veteran died on August [redacted], 1986, from carcinomatosis due to cancer of the esophagus. 3. The May 1994 decision was not supportable. 4. The March 1990 administrative decision was not supportable. 5. The veteran did not die on active duty prior to August 13, 1981, and it is not shown that he died from a disability incurred in or aggravated by service prior to August 13, 1981. CONCLUSIONS OF LAW 1. The decision of May 1994, which denied Restored Entitlement Program for Survivors benefits, contained clear and unmistakable error. 38 C.F.R. § 3.105(a) (1999). 2. The administrative decision of March 1990, which determined that Restored Entitlement Program for Survivors benefits were warranted, contained clear and unmistakable error. 38 C.F.R. § 3.105(a) (1999). 3. The requirements for benefits under the provisions of Section 156 of Public Law 97-377, the Restored Entitlement Program for Survivors have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.812 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Administrative Prior RO decisions that are final and binding are to be accepted as correct in the absence of "clear and unmistakable error." 38 C.F.R. §§ 3.104(b), 3.105(a) (1999). Otherwise prior decisions are final. 38 U.S.C.A. § 7105 (West 1991). The Court has defined clear and unmistakable error as "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). It is an error that is "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, 313-314 (1992). Further, "[a] determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior [RO decision]." Id. at 314. Additionally, the Court has stated: A claim of [clear and unmistakable error] is based upon an assertion that there was an incorrect application of the law or fact as it existed at the time of the disputed adjudication. [Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc).] Since an analysis of whether [clear and unmistakable error] has been committed may only proceed on the record, id., evidence that was not part of the record at the time of the prior determination may not form the basis of a finding that there was an act of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994) (emphasis in original). The Court has stated that, "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 order to establish a valid clear and unmistakable error claim, "the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of the prior decision." Hayre v. West, No. 98-7046 (Fed. Cir. Aug. 16, 1999), slip op. at 12 (citing Bustos v. West, No. 98-7069 (Fed. Cir. June 16, 1999)). The United States Court of Appeals for Veterans Claims (the Court) has established that determining jurisdiction is vital in adjudicating claims. See Bentley v. Derwinski, 1 Vet. App. 28 (1990). In this case, a favorable determination was made in March 1990 regarding benefits under Section 156, Public Law 93-377. The RO stated that the evidence of record showed that the veteran's service-connected death on August [redacted], 1986, was the result of disability incurred in service prior to August 13, 1981. Generally, that decision is final. In a May 1994 administrative decision, the RO prepared a decision, which denied benefits under Section 156, Public Law 93-377. The RO did not cite to the March 1990 administrative decision. Additionally, the May 1994 decision did not make any reference to clear and unmistakable error, difference of opinion, or changes in the law/regulation. Rather, the May 1994 panel substituted their own opinion for that of the March 1990 panel. The Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) theory is equally applicable, and there was no jurisdiction for the May 1994 panel to enter its decision unless it established jurisdiction at that time. After having reviewed the evidence, the Board finds that the failure of the RO to apply the correct law and regulation constituted clear and unmistakable error in the May 1994 decision. It must be noted that the July 1999 administrative decision was equally erroneous in that the RO failed to recognize the jurisdictional defects with the May 1994 decision. As to the March 1990 administrative decision, the Board finds that such decision was also clearly and unmistakably erroneous. There was no evidence of record that established that the veteran's fatal disease process had had its onset prior to August 13, 1981. The decision, on its face, is unsupported by any positive piece of evidence, and, in fact, refutes all other evidence of record. This constituted clear and unmistakable error in the March 1990 administrative decision. Thus, the Board has determined that there was clear and unmistakable error in both the May 1994 decision and the March 1990 administrative decision. The July 1999 administrative decision, which determined only that the March 1990 administrative decision was clearly and unmistakably erroneous, is supportable after reviewing all the evidence of record. Although the RO stated that it was affirming the May 1994 determination, the Board finds that the mischaracterization by the RO, since it had no jurisdiction to consider that decision, was harmless. The Board notes that the appellant was apprised of the reasons for the denial and was given adequate opportunity to respond to the August 1999 supplemental statement of the case. The August 1999 supplemental statement of the case included the regulation as to clear and unmistakable error. II. Merits The appellant has alleged that she is entitled to Restored Entitlement Program for Survivors benefits. She states that she believes the veteran's cancer was a result of Agent Orange exposure during the 1970s, and thus that he incurred his cancer prior to August 1981. In order to be entitled to payment of Restored Entitlement Program for Survivors benefits it must be established that the veteran died while on active duty prior to August 13, 1981, or that he died from a disability incurred in or aggravated by active duty prior to August 13, 1981. 38 C.F.R. § 3.812(a) (1999). The veteran died in August 1986 from carcinomatosis due to cancer of the esophagus. According to the death certificate, the approximate interval between the time of onset and death was "months." Service medical records reveal that the veteran was first diagnosed with metastatic squamous cell carcinoma of the distal esophagus in December 1985. In a December 1985 service medical record, the veteran reported that he had developed a dull, aching sensation in the left lower half of his chest wall anteriorly about ten months prior. The examiner noted that the veteran had sustained an injury to that area six months prior (which would have been in 1984) and that evaluation at that time was negative with a negative chest x-ray and normal EKG. The veteran stated that the dull ache persisted, which was not relieved by Tylenol or antiacids. The veteran reported that in November 1985, he noticed increasing chest discomfort and, for the first time, difficulty swallowing. The veteran stated that the dysphagia was not significant until Thanksgiving Day, when he was unable to eat his Thanksgiving dinner. He then noticed 10 pounds of weight loss. The veteran was evaluated in December 1985 and the carcinoma was found. In February 1986, a board of examiners determined that the veteran should be discharged. In its determination, the board of examiners determined that the metastatic squamous cell carcinoma of the distal esophagus had had its origin in 1985. The veteran was discharged from service in February 1986. In an April 1986 rating decision, the RO granted service connection for squamous cell carcinoma of the esophagus with metastasis to the liver and assigned a 100 percent disability evaluation. In a September 1986 rating decision, the RO granted service connection for the cause of the veteran's death. The appellant now seeks Restored Entitlement Program for Survivors benefits, stating that although her husband died in 1986, his cancer had developed as a result of Agent Orange exposure. After having reviewed the evidence of record, the Board finds that the appellant has not established eligibility to Restored Entitlement Program for Survivors benefits. The only possible basis for entitlement in this case, since the veteran died after service, would be if the fatal disease was incurred or aggravated prior to the August 1981 delimiting date. The service medical records establish that the veteran was first diagnosed with squamous cell carcinoma of the distal esophagus in December 1985. In a determination made by a medical board, the finding was that the approximate date of origin was 1985. There are no records to establish incurrence in or aggravation of squamous cell carcinoma of the distal esophagus prior to August 13, 1981. The appellant has stated that the veteran's cancer was due to Agent Orange exposure during the 1970's. She has asserted that she has received benefits from the Agent Orange Veteran Payment Program, which is indicative that the veteran incurred his cancer as a result of Agent Orange exposure. The Board finds that there is no medical support for the appellant's theory. Regardless, even if her theory is correct, it does not provide a legal basis for the award of Restored Entitlement Program for Survivors benefits. First, squamous cell carcinoma of the esophagus is not among the diseases listed in 38 C.F.R. § 3.309(e) (1999) as having a connection with Agent Orange exposure. Thus, such disease may not be presumed to be due to his exposure to Agent Orange. See McCartt v. West, 12 Vet. App. 164, 168 (1999) (where the veteran has not developed a condition enumerated in 38 U.S.C. § 1116(a) or 38 C.F.R. § 3.309(e), neither the statutory nor the regulatory presumption will satisfy the incurrence element of Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table)). Second, an award from The Agent Orange Veteran Payment Program does not automatically establish that the veteran incurred his cancer as a result of Agent Orange exposure. See Brock v. Brown, 10 Vet. App. 155, 161-162 (1997) (stating that although enrollment in the Program might seem to be probative of the veteran's possession of an Agent-Orange- related disability, the Court was not aware of any information suggesting that receipt of payments under the Program was indicative of the veteran having an Agent-Orange- related ailment. Further, the Court noted that the standards required for receipt of compensation under the Agent Orange Veteran Payment Program appeared to be very different from those required to establish service connection under chapter 11 of title 38 of the U.S. Code.). As a lay person, the appellant is not competent to address an issue requiring expert medical opinion, such as a medical diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lastly, even if we assume that Agent Orange exposure was the cause of the fatal disease process, the statute requires that the disorder become manifest (incurred in or aggravated) prior to August 1981. It is not the date of exposure that is determinative; it is the date of the manifestation of the disease process. In this case, there is no competent evidence that the fatal disease process was manifest prior to 1984. Since the veteran's death is not shown to have occurred while on active duty prior to August 13, 1981, or been the result of a disability incurred in or aggravated by active duty prior to August 13, 1981, the appellant has not satisfied the threshold requirement for payment of Restored Entitlement Program for Survivors benefits. Accordingly, payment of benefits under Section 156 of Public Law 97-377, the Restored Entitlement Program for Survivors, is not established. ORDER Benefits under Section 156 of Public Law 97-377, the Restored Entitlement Program for Survivors, are denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals