Citation Nr: 0006406 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-12 487A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in the May 9, 1997 Board of Veterans' Appeals decision which denied a claim of entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active duty from December 1942 to September 1945. He died in May 1979. This matter is currently before the Board of Veterans' Appeals (the Board) on motion by the appellant as to clear and unmistakable error (CUE) in a May 9, 1997 Board decision. The appellant is the veteran's widow. FINDINGS OF FACT 1. In a May 1997 decision, the Board denied entitlement to service connection for the cause of the veteran's death on the basis that his fatal heart disease was not causally linked to service and a preponderance of the evidence was against the claim that his fatal heart disease was etiologically related to his service-connected psychiatric disorder. 2. The appellant has alleged that service connection should have been granted as the evidence supported the claim; that the Board did not correctly evaluate the medical opinions of record; and that the Board did not properly apply the regulation (38 C.F.R. § 3.312) that governs claims of service connection for the cause of a veteran's death. 3. The May 9, 1997 Board decision considered all relevant evidence and was supported by the evidence then of record; it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied, and the decision was not undebatably erroneous. CONCLUSION OF LAW The May 9, 1997 Board decision denying service connection for the cause of the veteran's death does not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION On May 9, 1997, the Board issued a decision that denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The appellant filed a motion for reconsideration of the May 1997 Board decision which was subsequently denied. The appellant's representative has submitted a written brief, dated in September 1999, in support of the appellant's motion for revision of the Board's decision of May 9, 1997. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411 (1999). Pursuant to 38 C.F.R. § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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 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 pleading requirement. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. The Board notes that it has original jurisdiction to determine whether CUE exists in a prior final Board decision. 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 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). The Board's May 1997 decision found that a disability incurred in or aggravated by the veteran's military service did not cause or contribute substantially or materially to cause his death. The Board held that the preponderance of the evidence was against the claim. In the September 1999 motion for revision, the appellant and her representative have asserted that there were two areas of CUE in the May 1997 Board decision, the first being as follows: When reviewing the evidence of record, one must come to the conclusion that the May 1997 Board [decision] erred in its determination. We are puzzled by the evaluation of evidence in this case and one must...and is compelled to...ask this important question. How can one adverse medical expert opinion constitute a preponderance of the evidence to deny the claim when there are four favorable medical expert opinions of record? This preponderance theory constructed by the 1997 Board [decision] is not a logical legal conclusion drawn from the facts of this case and it is not in accordance with established VA laws. The Board notes that this allegation of CUE in the May 1997 Board decision, i.e.,"We are puzzled by the evaluation of evidence in this case," is one that is specifically precluded by 38 C.F.R. § 20.1403. According to 38 C.F.R. § 20.1403(d)(3), an example of a situation that is not clear and unmistakable error includes a disagreement as to how the facts were weighed or evaluated. The appellant's representative's statement of "How can one adverse medical expert opinion constitute a preponderance of the evidence to deny the claim when there are four favorable medical expert opinions of record?" is essentially an argument with the evaluation or weighing of the evidence. Such an allegation does not constitute a valid claim of CUE. As noted by the Court, a disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In other words, as this argument represents an example of disagreement as to how the evidence was interpreted and evaluated, it cannot constitute a basis for a finding of CUE. The appellant has also alleged that the May 1997 Board decision "only made a brief interlude when discussing § 3.312 and it did not fully discuss or analyze the case with respect [to] the contributory theory found in the regulation and cited in full below." The Board observes that the May 1997 Board decision contained the following: The governing legal criteria provide that service connection for the cause of the veteran's death is appropriate when, by the exercise of sound judgment without recourse to speculation, it is determined that a disability incurred in or aggravated in service caused or contributed substantially or materially to the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1996). Page 2 (emphasis supplied). Dr. Black reiterated this opinion in a May 1980 letter, stating that the veteran's chronic anxiety reaction and Type A behavior contributed to his accelerated hypertensive cardiovascular disease, and that this led to coronary artery disease and death. Page 6 (emphasis supplied). In light of this most recent medical evidence, the Board finds that it has not been sufficiently demonstrated that a disability incurred in or aggravated in service, in particular a psychiatric disorder, caused or contributed substantially or materially to the veteran's death. Page 7 (emphasis supplied). The Board observes that the May 1997 Board decision considered 38 C.F.R. § 3.312 in denying the appellant's appeal. The language of that regulation was included in a finding of fact, which supported the conclusion of law, and it was applied to the relevant facts in the rationale for the decision. The Board has considered the appellant's argument that, in view of the fact that several medical opinions supported her claim versus only one unfavorable opinion, it was erroneous for the Board to conclude that a preponderance of the evidence was against the claim. However, once again, this argument goes to a weighing of the evidence which is not a basis for a finding of CUE. Luallen, supra. The Board decision in question obviously gave more weight to the opinion from the VA Acting Director of the Medical Service, who unequivocally opined in November 1996 that the veteran's fatal cardiovascular disease was not causally related to his service-connected psychiatric disorder. Moreover, some of the favorable evidence (i.e., May 1995 statement from Dr. Moss) was generic in nature in that it did not pertain specifically to the veteran. The Court has held that medical opinions which are general in nature cannot support a claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Sacks v. West, 11 Vet. App. 314, 317 (1991). While duly noting the appellant's arguments, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. CUE "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." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). After careful review of the evidence of record, the Board finds that the May 9, 1997 Board decision was not undebatably erroneous in concluding that the preponderance of the evidence was against the claim that the veteran's service-connected psychiatric disorder caused or substantially contributed to his fatal cardiovascular disease. ORDER The motion for revision of the May 9, 1997 Board decision on the grounds of CUE is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals