Citation Nr: 0006534	
Decision Date: 03/10/00    Archive Date: 03/17/00

DOCKET NO.  98-15 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

Whether the April 1993 RO rating decision which denied 
service connection for the cause of the veteran's death 
contains clear and unmistakable error. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Stephen L. Higgs, Associate Counsel



INTRODUCTION

The veteran served on active duty from March 1969 to May 
1971.  The appellant is the veteran's surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in August 1998 by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the appeal before the Board has been obtained 
by the RO.

2.  The proper laws and regulations and the facts as they 
were known at the time were before the RO in April 1993 when 
it denied entitlement to service connection for service 
connection for the cause of the veteran's death.  The 
appellant has not contended otherwise.   The April 1993 RO 
rating decision was supportable.


CONCLUSION OF LAW

The appellant has not raised a proper claim of clear and 
unmistakable error in the April 1993 RO rating decision, 
which denied entitlement to service connection for the cause 
of the veteran's death.  38 C.F.R. § 3.105(a) (1999).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The appellant contends that the RO committed clear and 
unmistakable error (CUE) in an April 1993 RO rating decision 
which denied service connection for the cause of the 
veteran's death.  She claims that the RO should not have 
denied service connection for the cause of the veteran's 
death, in light of a March 1993 CT scan report prepared by 
R.W. Smith, M.D., in which the physician noted that the 
veteran had changes suggesting cephalomalacia involving the 
left frontal lobe which may have represented evidence of a 
previous injury, surgery or abnormality in that area. 

Service medical records reveal that the veteran was admitted 
to a hospital after an automobile accident in August 1970.  
Upon admission, he was in acute distress and was disoriented 
to time and place.  By the third day he was oriented to time, 
place and person.  During the last four weeks of his of his 
hospital stay he was up and about the ward and the hospital 
feeling well and neurologically intact, except for his 
extraocular movements.  He was hospitalized for approximately 
two months and two weeks as a result of the injuries incurred 
in the accident.  Final diagnoses were fracture, left frontal 
lobe, superior rim of orbit;  fracture, maxilla, La Forte I, 
left;  and cerebral contusion, frontal and temporal tips.    

During the veteran's April 1971 discharge examination, 
clinical evaluation of the head, face, neck and scalp, and of 
the vascular system, was normal.  Significant history was 
noted of a fracture of the left frontal bone, superior rim of 
orbit;  fracture of the maxilla, La forte I, left;  and 
cerebral contusion, frontal and temporal orbits.  The 
examining physician further noted that the veteran was 
hospitalized for 40 days beginning in August 1970, and that 
the condition for which he was hospitalized was resolved and 
not considered disabling.

During a January 1980 VA special neuropsychiatric 
examination, the veteran gave a history of having been 
unconscious for about 4 1/2 days after a major head injury 
incurred during an inservice automobile accident.  He 
complained of headaches.  The diagnosis was chronic brain 
syndrome associated with trauma manifested by headaches.

During a January 1981 VA examination, the veteran gave a 
history of having awoken 96 hours after an inservice 
automobile accident.  He complained of left frontal 
headaches.  The diagnosis was residuum of closed head trauma, 
consisting of healed fracture, left maxilla;  healed 
fractured, left frontal lobe;  small disfiguring scars of the 
left eyelid and left malar prominence;  healed fracture of 
the nasal bridge;  and complaints of left frontal headache.

The veteran's death certificate reflects that he died in 
March 1993.  Immediate cause of death was noted to be 
cardiopulmonary arrest, due to or as a consequence of 
subarachnoid hemorrhage from aneurysmal rupture.

A report prepared by R.W. Smith, M.D., of a CT scan of the 
brain taken on the day of the veteran's death reflects an 
impression of subarachnoid hemorrhage most likely from 
aneurysmal rupture.  According to Dr. Smith, there was 
essentially a lack of blood in the ventricles.  Additionally, 
there was evidence of a previous injury, surgery or 
abnormality of the left frontal lobe with changes of 
cephalomalacia.

In an April 1993 rating decision, on the basis of the record 
described above, the RO denied service connection for the 
cause of the veteran's death.  The RO found that the veteran 
died as a result of a brain aneurysm which was not located in 
the area injured by his automobile accident during service, 
and that the residuals of his automobile accident did not 
contribute to his cause of death by ruptured aneurysm.  

In June 1993, the appellant filed a notice of disagreement 
with the April 1993 RO rating decision, and the RO issued a 
statement of the case in August 1993.  However, the appellant 
never filed a formal appeal in response to the statement of 
the case.
 
Analysis

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of a preexisting 
injury suffered or disease contracted in the line of duty.  
38 U.S.C.A. § 1110.  Regulations further provide that service 
connection may be granted for any disease diagnosed after 
discharge, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d). The evidence may also show 
that a disability is proximately due to or the result of a 
service-connected disease or injury.  38 C.F.R. § 3.310(a).

To establish service connection for the cause of the 
veteran's death, the evidence must show that disability 
incurred in or aggravated by service either caused or 
contributed substantially or materially to the cause of 
death.  38 U.S.C.A. § 1310 (West 1991);  38 C.F.R. § 3.312.  
For a service connected disability to be the cause of death, 
it must singly or with some other condition be the immediate 
or underlying cause, or be etiologically related.  For a 
service connected disability to constitute a contributory 
cause, it is not sufficient to show that it casually shared 
in producing death, but it must be shown that there was a 
causal connection.  Id.

As noted above, the appellant never filed a formal appeal in 
response to an August 1993 statement of the case pertaining 
to the issue of service connection for the cause of the 
veteran's death.  Thus, the April 1993 rating decision on 
this issue became final.  38 U.S.C.A. § 7015 (West 1991).

The issue before the Board is whether the RO rating decision 
of April 1993, which denied service connection for the cause 
of the veteran's death, contains CUE.  Under the provisions 
of 38 C.F.R. § 3.105(a), previous determinations that are 
final and binding, including decisions of service connection, 
will be accepted as correct in the absence of clear and 
unmistakable error.  In order for a claim of CUE to be valid, 
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.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997);  
Damrel v. Brown, 6 Vet. App. 242, 245 (1994);  Russell v. 
Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Further, 
the error must be "undebatable" and of the sort which, had it 
not been made, would have manifestly changed the outcome at 
the time it was made, and a determination that there was CUE 
must be based on the record and law that existed at the time 
of the prior adjudication in question.  Id.  Simply to claim 
CUE on the basis that the previous adjudication improperly 
weighed and evaluated the evidence can never rise to the 
stringent definition of CUE, nor can broad-brush allegations 
of "failure to follow the regulations" or "failure to give 
due process," or any other general, non-specific claim of 
"error" meet the restrictive definition of CUE.  Fugo v. 
Brown, 6 Vet. App. 40, 44 (1993).

In essence, the appellant argues that the RO did not properly 
consider the March 1993 CT scan report prepared by R.W. 
Smith, M.D., in which the physician noted that the veteran 
had changes suggesting cephalomalacia involving the left 
frontal lobe which may have represented a previous injury, 
surgery or abnormality in that area.  The appellant contends 
in her June 1993 notice of disagreement that the March 1993 
CT scan was "not definitive enough for VA to have concluded 
that there was no connection," though the April 1993 RO 
rating decision clearly reflects that the CT scan report was 
considered by the RO.  Review of the record reveals that 
there was no medical evidence of record linking the veteran's 
inservice head injury to his death - thus, the RO conclusion 
that the two were not related is supportable.  In any event, 
a claim of CUE on the basis that the previous adjudication 
had improperly weighed and evaluated the evidence never rises 
to the stringent definition of CUE.  Fugo, 6 Vet. App. at 44;  
see also Russell, 3 Vet. App. at 313.  There is no 
contention, and no evidence to show, that the proper 
regulations and the facts as they were known at the time were 
not before the RO in April 1993 when it denied service 
connection for the cause of the veteran's death.

For these reasons, the Board finds that the appellant has not 
raised a valid claim of CUE in the April 1993 rating 
decision.


ORDER

The Board having determined that there was no clear and 
unmistakable error in the April 1993 RO rating decision 
denying service connection for the cause of the veteran's 
death, the appeal is denied.




		
	RENÉE M. PELLETIER
	Member, Board of Veterans' Appeals