Citation Nr: 0007043 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 99-21 373 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board of Veterans' Appeals (Board) March 7, 1966 decision that denied entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The deceased veteran had verified service from April 1943 to December 1945. He was honorably discharged from the service pursuant to a Medical Survey. The moving party is the deceased veteran's widow. This case comes before the Board on motion by the moving party alleging clear and unmistakable error (CUE) in a March 7, 1966 Board decision. The Board acknowledges that the moving party has revoked all powers of attorney and proceeds unrepresented. FINDINGS OF FACT 1. In a March 7, 1966 decision, the Board denied the moving party's claim for service connection for the cause of the veteran's death. 2. The Board's March 7, 1966 decision was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. CONCLUSION OF LAW The Board's March 7, 1966 decision did not contain CUE. 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.1400-20.1411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the RO in June 1998 issued a statement of the case to the then appellant on the issue of entitlement to an earlier effective date following the grant of service connection for the cause of the veteran's death which merely explained the regulations governing effective dates. At that time, the RO became aware that the final decision at issue was a March 1966 Board decision and that the Board had original jurisdiction to determine whether CUE existed in the prior final Board decision. The Board acknowledges that the motion for revision of a decision based on clear and unmistakable error received on October 12, 1999 complied with the requirements set forth in 38 C.F.R. § 20.1404(a) (1999) which requires a writing signed by the moving party or that party's representative which bears the name of the veteran, the applicable Department of Veterans Affairs file number, and the date of the Board decision to which the motion relates. See 38 C.F.R. § 20.1404(a) (1999). However, a motion for revision of a decision based on clear and unmistakable error must also set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. See 38 C.F.R. § 20.1404(b) (1999). Rule 1403, which is currently found at 38 C.F.R. § 20.1403, relates to what constitutes CUE and what does not, and provides as follows: (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed. --(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs (VA) not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error. --(1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. (Authority: 38 U.S.C.A. §§ 501(a), 7111). In an effort to establish an earlier effective date for entitlement to Dependency and Indemnity Compensation (DIC) benefits, the moving party argues that CUE exists in the March 1966 Board decision, which denied service connection for the cause of the veteran's death. The moving party asserts that the previous Board decision is "undebatably" erroneous. She has alleged that the correct facts, as they were known at the time, were not before the Board, and that the statutory and regulatory provisions extant at the time were incorrectly applied. But for these errors, the moving party contends the outcome of the March 1966 Board decision would have been manifestly different. The Board points out that a review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. In accordance with the applicable regulations in effect at the time of the Board decision, service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. See 38 C.F.R. 3.303(a) (1966). Each disabling condition shown by a veteran's service records, or for which he seeks service connection must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Section 3.303(b) provides that chronic disease shown in service or within the applicable presumptive period under 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Subpart (d) reflects 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. See 38 C.F.R. § 3.303 (1966). In general, 38 U.S.C. § 354 (U.S. GPO 1965), now designated as 38 U.S.C.A. § 1154 (West 1991), reflects that due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. In the case of any veteran who engaged in combat with the enemy in active service . . . during a period of war, the Administrator shall accept as sufficient proof of service connection any disease or injury alleged to have been incurred in or aggravated by such service. Satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. See 38 U.S.C. § 354; see also Pub. L. 85- 857, Sept. 2, 1958, 72 Stat. 1124. In relevant part, section 3.304 provides for service connection of disabilities, which may have resulted from service in a period of war. Subpart (b)(2) reflects that history conforming to accepted medical principles should be given consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during, or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of particular condition will be taken full account. See 38 C.F.R. § 3.304 (1966). Where a veteran has served ninety (90) days or more during a period of war, cardiovascular disease to include hypertension which becomes manifest to a degree of 10 percent within one year from the date of termination of wartime service, even though there is no evidence of such disease during the period of service may be considered for service connection. Cardiovascular-renal disease applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1 year period will be given the same benefit of service connection. See 38 C.F.R. §§ 3.307, 3.309 (1966). A disability that is proximately due to or the result of a service-connected disease or injury will be service- connected. See 38 C.F.R. § 3.310 (1966). Generally, section 3.312 reflects that the veteran's death will be service- connected when the evidence establishes that a disability incurred in or aggravated by service was either the principal cause (i.e., singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto) or a contributory cause (i.e., one not related to the principal cause of death but contributed substantially or materially to cause death). The issue involved will be determined by exercise of sound judgment, without recourse to speculation after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(1966). In this case, the moving party has not demonstrated that the March 7, 1966 Board decision contains CUE. As stated by the Court, for CUE to exist: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) 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. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.'" See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). "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." See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE errors "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." See Russell, 3 Vet. App. at 313. A disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error. See Luallen v. Brown, 8 Vet. App. 92, 95 (1995). If it is shown that a specific error was made, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to final decisions, and that where such decisions are collaterally attacked, the presumption of validity is even stronger. See Henderson v. Kibbe, 431 U.S. 145 (1977). The moving party has asserted that she is entitled to retroactive benefits based on the holding in Satchel v. Derwinski, 1 Vet. App. 258 (1991). See 38 C.F.R. § 3.101 (1966). While the procedural history of the present case is similar to that in Satchel, the facts in that case are determinative of that CUE claim. Briefly, unlike our case, that World War II veteran had a total of 26 documented high blood pressure readings during a 1943 hospitalization. During the 1940s and 1950s, he filed numerous claims for benefits. In 1961, the veteran was granted a non service connected pension based on total disability. Service connection for a heart condition was denied. The veteran died in 1965 from heart failure. Immediately following his death, his widow filed for DIC benefits. In 1965, the widow was notified by the RO that the veteran's death was not service connected and DIC benefits were therefore denied. She was granted non service connected death pension benefits. In short, the appellant did not appeal the RO decision. In 1987, the widow applied for VA loan guaranty benefits. In February 1988, the RO determined that she had not established eligibility for loan guaranty benefits. On appeal, the Board concluded in 1988 that the veteran died from a disability incurred in service and that the appellant met the basic eligibility requirements for loan guaranty benefits. In its decision, the [Board] cited to 26 high blood pressure readings from a 1943 hospitalization. The RO in November 1988 "for purposes of implementing the October 1988 decision of the Board" established service connection for the veteran's death and awarded the appellant DIC benefits effective September 1, 1987. The appellant challenged the effective date of the award arguing that her benefits should start on the date of his death. The Court held that the 1961 RO decision denying the veteran service connected disability compensation as well as the 1965 RO decision not granting service connected DIC benefits to the appellant were, as made manifest by the 1988 Board decision, undebatably erroneous. Consequently, the appellant was entitled to receive retroactive DIC benefits as if the 1965 decision had been made correctly. Simply, in that case, undebatable error was found to exist in the prior decisions. However, in this case, the correct facts, as set forth in the claims folder and reported in the March 7, 1966 Board decision, reflect that the veteran served from April 1943 to December 1945. He died in April 1965. The death certificate shows the cause of death as coronary thrombosis, and notes that the veteran died suddenly. An autopsy was not performed. The medical records furnished by the service department do not reveal any findings, treatment, or diagnoses of a cardiovascular disorder. An undated service medical record reflects a blood pressure reading of 130/85 and that the veteran was to be evacuated. Treatment for combat fatigue began in May 1945, subsequently diagnosed as psychoneurosis, anxiety. The veteran was separated from the service by reason of that condition. VA examined the veteran in April 1946. He complained of nervousness. His blood pressure was 140/98. His cardiovascular system was normal. The heart and aortic shadows were normal in size, position, and contour. The diagnoses included neurosis, anxiety. The veteran was examined by VA in April 1948. His blood pressure was 140/98, and his cardiovascular system was normal. His orientation and emotional reactions were reported to be normal and he seemed to get along fairly well with people. However, he was quite nervous. The diagnosis was psychoneurosis - anxiety type. In August 1954, he was given a psychiatric examination. Anxiety state was diagnosed. A x-ray study of the chest made at that time was negative. The examination report is silent as regards complaints of hypertension, elevated blood pressure, or cardiovascular disease. The veteran's service- connected psychoneurosis, anxiety, was evaluated as ten percent disabling since July 1948. In accordance with the regulations governing CUE in a prior Board decision, CUE is based on the evidence of record at the time the decision was entered and additional evidence submitted after the decision may not be considered. Therefore, the moving party's reliance on additional evidence (etiological opinion) not previously considered by the Board in March 1966 together with post 1966 regulatory and administrative provisions governing the Secretary's failure to fulfill his duty to assist are insufficient to form a basis of a claim for CUE. At this juncture, it can not be stated based on the evidence of record and the regulations in effect at the time of the decision that the Board's failure to conclude that service connection for the cause of the veteran's death was warranted constituted "undebatable" error. The Board decision reflects that the veteran was anxious/ nervous on VA examinations, that his blood pressure on one occasion in April 1966 (months after service) was 140/98 with his cardiovascular system evaluated as normal at that time. Two years later, his blood pressure was 140/98 with his cardiovascular system again evaluated as normal. The 1954 VA examination is silent as regards any complaints by the veteran or reports of hypertension or cardiovascular disease. Isolated elevated blood pressure readings with normal cardiovascular evaluations in an individual who presented as nervous on examination without any other medical evidence to establish sustained elevations of blood pressure would not necessarily warrant a conclusion that the individual had cardiovascular disease. There was no reference in the records to cardiovascular disease until 1965 when the veteran died of a coronary thrombosis. At that time, based on the medical evidence then of record, the disease was not etiologically related to the psychiatric disorder for which service connection had been granted in 1946. The 1966 Board decision reflects that the appellant mentioned in her appeal that the veteran was unable to pass certain insurance examinations as he was either rejected completely or subjected to a premium rate that he could not afford. The cause [nature] of the rejections were not stated and were not shown to have been at a time to be determinative of entitlement to service connection for the disease which caused his death. The March 1966 final Board decision included a written statement of findings and conclusions, and a discussion of the findings and conclusions, on all material issues of fact and law presented on the record to conclude that the evidence (1) failed to establish that a cardiovascular disorder was incurred in or aggravated by service or manifested to a degree of ten percent or more within one year following termination of active wartime service; (2) failed to establish that a cardiovascular disorder was proximately due to or the result of the service-connected psychiatric disorder; and (3) failed to establish that the service- connected psychiatric disorder materially or substantially contributed to the cause of the veteran's death to warrant service connection for the cause of the death. See Eddy v. Brown, 9 Vet. App. 52, 57 (1996). The decision does not reflect that any of the applicable presumptions or the regulations governing service connection for the cause of the veteran's death were applied incorrectly. See 38 U.S.C. § 354 (U.S. GPO 1965); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.312 (1966). On review, the March 1966 Board decision was consistent with and was supported by the law and principles applicable to the determination of whether service connection for the cause of the veteran's death was warranted based on the medical evidence then of record. Accordingly, the denial of service connection for the cause of the veteran's death was a reasonable exercise of adjudicatory judgment and did not involve CUE. The moving party has raised broad allegations of error concerning the March 7, 1966 Board decision, but not necessarily the discrete issue of CUE. The moving party has not demonstrated that, but for the specific error alleged, reasonable minds could not differ that the outcome would have been manifestly different. See Fugo, 6 Vet. App. at 44. Clearly, the case presently before the Board bears little resemblance to the Satchel case to warrant the same outcome. Specifically, that veteran had documented sustained high blood pressure in service, he applied for service connection for a heart condition, and he indisputably died of a heart condition subsequent to being denied. In contrast, the evidence in Kavulla I in March 1966 was limited to an elevated blood pressure reading 4 months after service and one other elevated blood pressure reading 2 years thereafter without other supporting medical evidence to establish that these isolated readings were related to his military service. In essence, the moving party's argument represents a clear- cut example of disagreement as to how the evidence was interpreted, evaluated, and weighed. As such, the argument cannot constitute a basis for a finding of CUE. See 38 C.F.R. § 20.1403(d)(3)); see also Luallen, supra. Otherwise, the moving party has not demonstrated that the March 1966 Board decision contained CUE. Lastly, the moving party asserts that she was not provided notice of her appellate rights as regards reconsideration in 1966. See 38 U.S.C.A. § 19.148 (1966). As discussed above, the Secretary's failure to fulfill his duty to assist is not a discrete issue of CUE. Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. See Fugo, 6 Vet. App. at 43-44. After careful review of the evidence of record, the undersigned concludes that the moving party has not set forth specific allegations of error, either of fact or law, in the March 7, 1966 decision by the Board. Accordingly, in the absence of any additional allegations, the motion is denied. Because the moving party's motion failed to comply with the requirements set forth in 38 C.F.R. § 20.1404(b) (1999), the motion is denied. ORDER The motion for revision of the March 7, 1966 Board decision on the grounds of CUE is denied. Deborah W. Singleton Member, Board of Veterans' Appeals