Citation Nr: 0005204	
Decision Date: 02/28/00    Archive Date: 03/07/00

DOCKET NO.  97-32 874A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error (CUE) in the 
Board of Veteran's Appeals' March 1997 and October 1992 
decisions.


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel




INTRODUCTION

The moving party is the service member's widow.  The service 
member died on April [redacted], 1965.  The deceased service 
member had active service in the Philippine Commonwealth Army 
from September 1941 to April 1942, and in the Regular 
Philippine Army from February 1945 to June 1946.  

This case comes before the Board on motion by the moving 
party alleging CUE.  The CUE arguments relate to Board 
decisions in March 1997 and October 1992 which determined 
that no new and material evidence had been submitted to 
reopen a claim of entitlement to service connection for the 
cause of the veteran's death.  The claim was initially denied 
by the RO in August 1970 and was not effectively appealed.  


FINDINGS OF FACT

1.  Service connection for the cause of the veteran's death 
was initially denied by an unappealed rating decision of the 
RO in August 1970.  

2.  In October 1992, the Board held, in pertinent part, that 
new and material evidence had not been submitted to reopen a 
claim of entitlement to service connection for the cause of 
the veteran's death and that the unappealed August 1970 
rating action did not involve error.  

3.  In March 1997, the Board held that new and material 
evidence had not been submitted to reopen a claim of 
entitlement to service connection for the cause of the 
veteran's death.  

4.  The Board's October 1992 and March 1997 decisions were 
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 1997 and October 1992 decisions did not 
contain CUE.  38 U.S.C.A. § 7111 (West Supp. 1998); 38 C.F.R. 
§§ 20.1400-20.1411 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background

In August 1970, the RO determined that service connection for 
the cause of the veteran's death was not warranted.  The 
service medical records (SMRs) were negative for treatment or 
diagnosis of a lung disorder and the certificate of death 
showed that the veteran died in April 1965 due to Koch's 
pneumonia.  This decision was not effectively appealed.  

In May 1991, the appellant filed a request to reopen her 
claim and requested a personal hearing; in June 1991, she 
renewed her request for a personal hearing and indicated that 
she wished to reopen her claim for service connection for 
cause of death partly on the grounds that the veteran was a 
prisoner of war and that this entitled her to a hearing 
before a hearing officer at the RO and reiterated her claim 
that the veteran's death was due to a service-connected 
disease.  The RO, in an August 1991 letter to the appellant 
informed her that the transcript of her personal hearing did 
not provide a reasonable basis to warrant a change in the 
prior determination.  

Subsequently submitted was a joint lay statement dated in 
November 1991 in which it was asserted that the affiants 
served with the veteran during service and that he was 
hospitalized and treated for pneumonia and died in 1965.  In 
March 1992, the RO determined that this statement was not new 
and material evidence and the claim for service connection 
for the cause of the veteran's death was denied.  

In an October 1992 Board decision, it was noted that the 
appellant's primary contention was that the RO committed 
error in denying her claim for the cause of the veteran's 
death as he died from a lung disorder that was initially 
incurred during service.  She claimed that he was a prisoner 
of war and was therefore entitled to death compensation on 
the basis of his prisoner-of-war status.  Evidence received 
since the RO decision of August 1970 included a June 1971 
medical certification reflecting treatment in 1946 at a 
private facility; the November 1991 joint affidavit 
summarized above; numerous statements by the appellant and 
her representative; and the appellant's testimony at a 
personal hearing in July 1991.  It was determined that some 
of this evidence was new in that it had never been 
considered.  However, it was determined that this evidence 
was not material.  Specifically, it was noted that the 1971 
certification only showed that the veteran was treated in 
1946 and did not refer to what this treatment was for.  It 
was noted, however, that these dates were coterminous with 
the report of hospitalization for observation for malaria 
from August to September 1946, previously considered by the 
RO.  No lung disorder was noted.  

In the October 1992 decision, the Board noted that the other 
evidence received since the prior RO decision was also devoid 
of any clinical findings showing that the veteran had a 
chronic lung disorder during service or at any time prior to 
his final illness.  While the November 1991 joint affidavit 
seemed to imply that the veteran was a prisoner of war, it 
was not explicitly stated that this was so.  The Board noted 
that the statement did not reflect that the veteran had a 
chronic lung disorder during service or until many years 
following separation.  The affiant's were not capable of 
providing a probative diagnosis as to the veteran's cause of 
hospitalization.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  

In conclusion, the Board pointed out that the many statements 
of record of the appellant and her representative asserting 
that the veteran died form a service-connected disability 
were considered.  This evidence was described as merely 
repetitious of that previously of record and did not serve as 
a credible basis for a finding in favor of the appellant.  
The record was noted to be devoid of any objective medical 
evidence demonstrating that the veteran had a chronic lung 
disorder during service or until almost 20 years later.  
Accordingly, the claim to reopen the appellant's claim for 
cause of death was denied.  

As to the assertion that there was clear and unmistakable 
error in the 1970 denial of the claim for cause of the 
veteran's death based on the RO's failure in its duty to 
assist, the Board pointed out that a review of the claims 
file reflected that attempts had been made to obtain medical 
records and that the SMRs and additional post service records 
were of record at the time of the initial denial.  Thus, it 
was concluded that there was no failure of the duty to assist 
or denial of due process of law.  CUE was not shown.  

Submitted subsequent to the October 1992 Board decision were 
previously submitted copies of SMRs, copies of prescriptions 
from the 1960s; a private X-ray report from February 1964 
showing an essentially negative chest; and a private 
physician's statement confirming that the veteran was 
hospitalized and died in August 1965 (although the Board 
noted that the veteran had actually died in April 1965).   

In a November 1992 rating determination, the RO concluded 
that no new and material evidence had been submitted to 
reopen the claim for service connection for the cause of the 
veteran's death.  

Subsequently added to the record was another joint affidavit 
statement dated in August 1994, which attested to knowledge 
that the veteran suffered from asthma, tuberculosis, and 
malaria.  An undated statement by a private physician 
reported that he treated the veteran prior to his death.  The 
cause of death was noted as tuberculosis pneumonitis with 
contributory disease of malaria and asthma.  In a statement 
dated in August 1994, Marino P. Morales stated that the 
veteran died of asthma, tuberculosis, and malaria.  

In November 1994, the RO determined that no new and material 
evidence had been submitted and the claim for entitlement to 
service connection for the cause of the veteran's death was 
not reopened.  The appellant submitted a notice of 
disagreement with this decision.  

In a March 1997 Board decision, it was noted that subsequent 
to the 1992 Board determination, the appellant had submitted 
a duplicate copy of the veteran's August 1965 Certificate of 
Death, an August 1977 report which reiterated that the 
veteran was hospitalized in August 1965 and died within the 
same month, and duplicate copies of the veteran's SMRs.  The 
Board found that this evidence was not new as is it was 
merely cumulative and duplicative of other evidence 
previously considered in October 1992.  

The Board pointed out that after the 1992 decision, the 
appellant also submitted the following evidence, most of 
which has been summarized above: the February 1994 X-ray 
report; copies of the veteran's medical prescriptions; the 
August 1994 statement which reiterated that the veteran died 
in April 1965 at a private hospital due to asthma, pulmonary 
tuberculosis, and malaria and was a soldier; and an August 
1994 medical statement from a private physician in which it 
was stated that he had treated the veteran prior to his 
death.  Also of record was a December 1994 certification 
statement from the Republic of the Philippines, which 
essentially maintained that the veteran was discharged in 
1946 and was known to have died of tuberculosis, malaria, and 
asthma, ailments, which were believed to have been contacted 
in service.  

The Board found that while this evidence may be considered 
new, in that it provided additional medical reports referable 
to the veteran's treatment post service that was not 
previously of record, it was not material, as it was of 
little probative value in establishing that a disability of 
service origin substantially or materially caused or lent 
assistance to the veteran's cause of death.  Specifically, it 
was noted that the physician's statements which essentially 
maintained that the cause of the veteran's death was related 
to service were not convincing that there was no supporting 
medical evidence which tended to show that any inservice 
ailment, treatment, or occurrence substantially or materially 
caused or lent assistance to the cause of death.  The Board 
emphasized that the certificate of death showed that he died 
of Koch's pneumonia that was not shown during service.  

Other clinical records such as the 1964 X-ray report only 
showed that the veteran received medical treatment after 
service.  In the Board's 1997 decision, it was pointed out 
that such evidence was not probative in that it did not 
clinically establish the cause of the veteran's death.  
Regarding affidavits and the appellant's statements, the 
Board noted that while these were new, there were of limited 
evidentiary value as they were not competent evidence of a 
nexus between the cause of death and service.  The letters 
and affidavits were not of sufficient weight or significance 
to create a reasonable possibility of a change in the outcome 
of the case.  It was pointed that that lay witnesses could 
provide an eyewitness account of the veteran's symptoms, but 
there were not competent to relate the cause of the veteran's 
death.  Lay assertions of medical causation could serve as 
the predicate to reopen a claim pursuant to 38 U.S.C.A. 
§ 5108 (West 1991) with reference to Moray v. Brown, 5 Vet. 
App. 211, 314 (1993).  .  

The Board decision also indicated that while the contention 
was considered that the veteran incurred his fatal Koch's 
pneumonia when he was a prisoner of war, the evidence of 
record did not show that he was indeed such a prisoner.  
Specifically, the Board noted that the records received from 
the Service Department in 1965 did not support the veteran's 
alleged prisoner of war status.  

In conclusion, the Board pointed out that the evidence 
submitted subsequent to the 1992 Board decision essentially 
established a similar clinical picture as was present when 
the Board initially considered and denied the claim.  The 
evidence did not present a reasonable possibility that a 
disorder of service origin, substantially or materially , 
caused or aided the cause of the veteran's death.  

In a November 1997 statement, the appellant reiterated her 
contention that the veteran died of a disorder of service 
origin.  She argued that he suffered from asthma, 
tuberculosis, and malaria, and that these disorders were 
aggravated during service and during his time as a prisoner 
of war.  

Analysis

Rule 1403, which is currently found at 38 C.F.R. § 20.1403 
(1999), relates to what constitutes CUE in a Board decision 
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 further notes that with respect to the final 
provisions of the regulations pertaining to the adjudication 
of motions for revision or reversal of prior Board decision 
on the grounds of CUE, the definition of CUE was based on 
prior ruling of the Unites States Court of Appeals for 
Veterans Claims (known as the United Sates Court of Veterans 
Appeals prior to March 1, 1999, hereafter "the Court").  
More specifically, it was observed that Congress intended 
that VA adopt the Court's interpretation of the term "CUE."  
Indeed as was discussed in the notice of proposed rulemaking 
(NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the 
bill that became the law specifically noted that the bill 
would "not alter the standard for evaluation of claims of 
CUE."  143 Cong. Rec. 1567, 1568 (daily ed. April 6, 1997) 
(remarks of Rep. Evans, sponsor of H.R. 1090, in connection 
with House passage).  Therefore, the Board is permitted to 
seek guidance as to the existence of CUE in prior board 
decisions based on years of prior Board decisions based on 
years of prior Court decision regarding CUE, such as Fugo v. 
Brown, 6 Vet. App. 40 (1993).  

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 "undebatable" and the sort 
"which, had it not been made, would have 
manifested 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 for the prior adjudication in 
question.   

Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell 
v. Principi, 3 Vet. App. 310, 313-14 (1992)).  

The Court has consistently stressed the rigorous nature of 
the concept of CUE.  "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."  Oppenheimer v. 
Derwinski, 1 Vet. App. 370, 372 (1991).  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, 3 Vet. 
App. at 313.  "It must always be remembered that CUE is a 
very specific and rare kind of 'error.'"  Fugo v. Brown, 6 
Vet. App. 40, 43 (1993).  A disagreement with how the Board 
evaluated the facts is inadequate to raise the claim of CUE.  
Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  

The moving party has disputed the conclusions and findings 
reached by the Board in March 1997 and October 1992.  In 
essence she disputes the weighing and evaluation of the 
evidence.  Such dispute cannot form a valid basis for CUE in 
either a Board decision.  38 C.F.R. § 20.1403.  The 
statements of the appellant, along with written arguments 
prepared by her representative, are simply a request for a 
readjudication of the claim on the merits addressed by the RO 
on numerous occasions, beginning in August 1970 and in Board 
decisions in October 1992 and March 1997.  This is not the 
purpose of a review based upon CUE.  In any event, the 
medical records submitted do not associate the veteran's 
death due to Koch's pneumonia to military service.  In 
addition, there are no specific contentions of error of fact 
or law in the decisions in question.  In fact, the 
contentions amount to a disagreement with the outcome of the 
decisions.  The moving party is simply reiterating her 
previous contentions.  Such arguments cannot form the basis 
of a CUE claim.  She has not set forth any basis for a 
finding of error or any indication why the result of this 
decision would have been different but for an alleged error.  

The Board notes parenthetically that the moving party has 
asserted that there was error in the RO's 1970 decision that 
initially denied entitlement to service connection for the 
cause of the veteran's death.  This decision has been 
subsumed by the Board's 1992 and 1997 decisions, which 
affirmed that decision.  Donovan v. Gober, 10 Vet. App. 404 
(1997); Talbert v. Brown, 7 Vet. App. 353 (1995).

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 
Board's decisions of March 1997 or October 1992.  
Accordingly, in the absence of any additional allegations, 
the motion is denied.  



ORDER

The motion for revision of Board decisions in March 1997 and 
October 1992 on the grounds of CUE is denied.  



		
	Mark D. Hindin
Member, Board of Veterans' Appeals