BVA9502327 DOCKET NO. 93-09 017 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether a December 9, 1954, rating decision that denied service connection for the cause of the veteran's death was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from November 1942 to August 1945. In a December 9, 1954, "Dependents Pension Board, Dependents and Beneficiaries Claims Service" rating decision, the Department of Veterans Affairs (VA) Denver, Colorado, Regional Office denied the appellant's claim of entitlement to service connection for the cause of the veteran's death on the basis that the veteran's service-connected conversion reaction with anxiety did not cause or contribute to his demise. The December 1954 rating decision found that the evidence of record failed to show that the veteran's death was due to a disease or injury incurred in or aggravated by active military service. The appellant received notification of that rating decision in December 1954, but she did not file a notice of disagreement as to that decision. Therefore, the December 1954 rating decision became final in December 1955, one year after the appellant's notification thereof. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision of the VA Houston, Texas, Regional Office (RO), which denied clear and unmistakable error in the December 1954 rating decision. Review of the claims file indicates that the appellant may also be seeking entitlement to service connection for the cause of the veteran's death under 38 U.S.C.A. § 1151 (1994) because the veteran expired in a VA hospital. This claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that a VA Regional Office committed clear and unmistakable error in a December 1954 rating decision by denying service connection for the cause of the veteran's death. The appellant avers in her October 1992 substantive appeal to the Board that the veteran should have been service-connected for acute leukemia, which caused his death, because, the appellant alleges, the veteran had manifested symptoms of acute leukemia during the presumptive period for entitlement to service connection. She also maintains that the VA committed error by not informing her that she could have submitted private medical records to support her claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's claim concerning clear and unmistakable error is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. In a December 1954 rating decision, the VA Denver, Colorado, Regional Office denied service connection for the cause of the veteran's death, and because the appellant did not file a notice of disagreement with that decision within one year after receiving notification thereof, the decision became final. 3. The appellant has not alleged specific errors of fact or law in the December 1954 rating decision so as to raise a valid claim of clear and unmistakable error in that decision. CONCLUSION OF LAW The appellant's claim that clear and unmistakable error was present in the December 1954 rating decision is not well-grounded. 38 U.S.C.A. §§ 1101, 1112, 1113, 5107(a), 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105(a), 3.156, 3.307, 3.309, 20.302(a), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Additionally, where a veteran served continuously for 90 days or more during a period of war, and leukemia becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1994). Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply. 38 C.F.R. § 3.105(a) (1994). The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a claim is not well- grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions as to the claim of clear and unmistakable error (CUE) as having been present in the December 1954 rating decision is inherently incredible when viewed in the context of the total record. Review of the claims file reveals that a September 1945 rating decision granted service connection for a "psychoneurosis, anxiety state, symptomatic at discharge." A December 1954 rating decision determined that the veteran was service-connected for a "conversion reaction with anxiety," which existed at the time of his death, and that the cause of his death was due to acute leukemia. Service medical records reveal no complaint or finding indicative of leukemia. At a May 1947 VA report of physical examination, the veteran complained that his left shoulder had started aching approximately one year prior to the examination. The physician noted no signs of rheumatism, and an x-ray of the left shoulder revealed no abnormality. Physical examination showed that the veteran's cardiovascular system, respiratory system, genitourinary system, spleen, and lymphatic glands were normal. The neuropsychiatric examination diagnosis was "psychoneurosis, anxiety hysteria," and the physician reported that the veteran suffered from a chronic anxiety state. At a February 1950 VA special neuropsychiatric examination the veteran complained that he used to have blackouts overseas and that his left shoulder bothered him in cool weather. The physician noted that the veteran had not had any blackout episodes for more than a year prior to the examination and that he reported only one blackout episode since 1947. It was the firm belief of the examiner that the veteran's "blackouts" were indicative of an escape mechanism. A routine chest x-ray showed "a little emphysema in both lungs," but was otherwise negative. A VA Form 8-526 (Veteran's Application for Compensation or Pension), signed by the veteran on October 26, 1954, showed that he was hospitalized at a VA hospital due to an "acute blood condition." A November 1954 death certificate from the state of Texas indicated that the veteran had been hospitalized at a VA facility from October 19, 1954, until his death on November 3, 1954. "Acute leukemia" was listed as the disease directly leading to his death, and pneumonia was listed as a condition contributing to death but not related to the disease causing death. The United States Court of Veterans Appeals (Court) has held that for there to be a valid claim of "clear and unmistakable error," there must have been an error in the prior adjudication of the claim, such that either the correct facts or applicable law, in effect at the time of the prior adjudication, was incorrectly applied. The Court stated that the claimant must aver more than just his disagreement with the factual determination rendered by the prior adjudicator. Russell v. Principi, 3 Vet.App. 310, 313 (1992) (consolidated with Collins v. Principi, No. 90-416 (en banc)). See also Oppenheimer v. Derwinski, 1 Vet.App. 370 (1991), and Kronberg v. Brown, 4 Vet.App. 399 (1993). Since an analysis of whether CUE has been committed may only proceed on the record, 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). [M]erely to aver that there was CUE in a case is not sufficient to raise the issue. Stated another way, while the magic incantation "clear and unmistakable" need not be recited in haec verba, to recite it does not suffice, in and of itself, to reasonably raise the issue. It must always be remembered that CUE 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. Thus 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. Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993) (citing Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc)). The Court also noted in Fugo v. Brown that it was difficult to see how failure in the "duty to assist" could ever be clear and unmistakable error. Id. In an October 1992 substantive appeal to the Board, the appellant stated that the veteran had shown symptoms of fatigue, weakness, and depression since being discharged from service and that she attributed those symptoms to his subsequent diagnosis of acute leukemia. However, the appellant lacks the medical expertise to enter an opinion regarding either the nature of the veteran's acute leukemia or a causal relationship between acute leukemia and service or to a service-connected disability. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The appellant noted that the local doctor who had treated the veteran was no longer living, and that there were no remaining private medical records left. The appellant could not recall having received notice from the VA indicating that she could have submitted private medical records in support of her claim. She felt that this was error on the part of the VA. After a thorough review of the appellant's contentions regarding her claim of clear and unmistakable error in the December 1954 rating decision, the Board notes that she does not contend either that the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions existent at the time were incorrectly applied. The Board also notes that she does not assert disagreement with how the RO evaluated the facts before it. Rather, she based her assertion of clear and unmistakable error on alleged evidence that was not part of the record before the agency of original jurisdiction. Therefore, the Board finds that no valid claim of clear and unmistakable error as to the December 1954 rating decision has been raised, and hence, the claim is not plausible or well-grounded. The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well- grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should she seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if she can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decision in September 1991. ORDER Having found that the appellant's claim of clear and unmistakable error concerning the December 9, 1954, rating decision is not well-grounded, the appeal is dismissed, and the rating action of September 18, 1991, is vacated. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.