Citation Nr: 1309974 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 97-32 666A ) DATE ) ) THE ISSUE Whether the May 2010 Board of Veterans' Appeals (Board) decision denying service connection for a respiratory disorder to include bronchial asthma with a history of bronchitis and allergic rhinitis to include as due to herbicide exposure should be revised or reversed on the grounds of clear and unmistakable error (CUE). ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the moving party in this action. He had active service from August 1969 to July 1971. The moving party served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. This matter is currently before the Board on the moving party's August 2010 motion for revision or reversal on the grounds of CUE in the May 2010 Board decision denying service connection for a respiratory disorder to include bronchial asthma with a history of bronchitis and allergic rhinitis to include as due to herbicide exposure. FINDINGS OF FACT 1. In May 2010, the Board denied service connection for a respiratory disorder to include bronchial asthma with a history of bronchitis and allergic rhinitis to include as due to herbicide exposure. The moving party was provided with a copy of the decision. He did not appeal the adverse decision to the United States Court of Appeals for Veterans Claims (Court) and it is therefore final. 2. The evidence of record at the time of the May 2010 Board decision establishes that the moving party was exposed to fumes associated with burning human waste while in the Republic of Vietnam; was repeatedly diagnosed with bronchial asthma by VA and private physicians; and there was competent medical opinion evidence relating the in-service exposure to fumes associated with burning human waste to the asthma. 3. The May 2010 Board decision concluded that "there is no competent evidence that the Veteran is in fact the type of genetically prone individual" to develop asthma and otherwise inappropriately discredited the competent medical opinion evidence of record. 4. The May 2010 Board decision concluded that a preponderance of "competent and credible evidence" was against the claim for service connection. 5. The May 2010 Board decision is legally erroneous in its assignment of no probative value to the private medical opinion evidence. 6. The May 2010 Board decision is legally erroneous in failing to apply the benefit of the doubt standard under the provisions of 38 U.S.C.A. § 5107(a) (West 2002) and 38 C.F.R. § 3.102 (2012). 7. The outcome of the May 2010 Board decision would have been manifestly different, a grant of service connection, but for the legal errors. CONCLUSION OF LAW The May 2010 Board decision denying service connection for a respiratory disorder to include bronchial asthma was clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-1411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced the Department of Veterans Affairs' (VA) duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U.S. Court of Appeals for Veterans Claims (Court) has directed that the VCAA does not apply to motions for revision or reversal based on CUE. Hines v. Principi, 18 Vet. App. 227, 235 (2004); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). See also 38 C.F.R. § 20.1411 (obligations imposed by other statutes listed are not applicable to motions to revise or reverse Board decisions). The Court has clarified that CUE motions are not conventional appeals, but rather are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Moreover, that litigant has the burden of establishing CUE on the basis of the evidence then of record. Livesay, 15 Vet. App. at 178-179. In February 2011, the moving party was informed in writing of the law and regulations governing the standard of CUE. Historical Review The moving party's service treatment records make no reference to asthma or bronchitis. An October 1969 treatment entry states that the moving party was diagnosed with a head and chest cold while at Fort Polk, Louisiana. A January 1971 treatment entry reflects that the moving party complained of a cough. The Veteran's Report of Separation from the Armed Forces of the United States (DD Form-214) notes that he served with the Americal Division in the Republic of Vietnam. He was awarded the Combat Infantryman Badge. The Veteran's complete service personnel documentation is not of record. However, the Veteran submitted a June 1970 letter from the Army's Office of the Inspector General addressed to him which responded to his June 1970 letter questioning the policy of "assigning U.S. soldiers to the task of burning human waste at the Division Combat Center." The Inspector General stated that no soldier was "assigned this duty on a regular basis, but from time to time it becomes a necessary fatigue detail because of the absence of indigenous employees." An August 1995 written statement from M. Seligman, M.D., advances that: "burning human feces with gasoline produces fumes which would be injurious to human lungs;" "apparently, [the moving party] performed this function during his Army service in 1970;" and "this type of lung damage triggers asthma in genetically prone individuals." In September 1995, the moving party submitted a claim for a respiratory disorder to include "lung damage, asthma, severe allergies, and a loss of a 'quality of life'" secondary to having been ordered "to burn human waste with gasoline at the Americal Combat Center in 1970." The report of a February 1996 VA trachea and bronchi examination states that the moving party presented a history of "exposure to fumes secondary to burning human waste." The moving party was diagnosed with a history of bronchitis and bronchial asthma. A September 1996 VA evaluation conveys that: "sometime in 1970, [the moving party] was assigned the task of burning human waste with gasoline;" "the February 1996 VA examination report does not specify when the Veteran's pulmonary problems began;" "if he suffered pulmonary symptoms as an immediate response to the exposure, then his subsequent problems can be related;" and "if there were no symptoms at the time, the subsequent asthma is unrelated." In January 1997, the Newark, New Jersey, Regional Office (RO) denied service connection for bronchial asthma with a history of bronchitis. In his February 1997 notice of disagreement, the moving party clarified that: The examiner indicated that if the Veteran suffered pulmonary symptoms as an immediate response to the exposure, there could be a relationship. In response, let me say again. I did bring this to the attention of my immediate supervisor. That was a staff sergeant. He saw that I was coughing. I did complain. I did take immediate action. The Army did nothing. A November 2002 pulmonary evaluation from J. Barasch, M.D., states that an impression of "asthma by history" was advanced. The doctor commented that "since the symptoms are temporally related to his exposure to burning human waste, it is certainly possible that this has played a role in the development of bronchial inflammation and the subsequent development of reactive airways disease." In July 2002, the Board determined additional development of the record was necessary. In March 2003, the Board denied service connection for bronchial asthma with a history of bronchitis. The moving party subsequently appealed to the Court. In August 2003, the Court granted the Parties' Motion to Remand; vacated the March 2003 Board decision; and remanded the moving party's appeal to the Board for additional action. In May 2004, the Board remanded the moving party's appeal to the RO for additional action. In February 2006, the Board again remanded the moving party's claim to the RO for additional action. In May 2006, the Board again denied service connection for bronchial asthma with a history of bronchitis. The moving party subsequently appealed to the Court. In September 2006, the Court granted the Parties' Motion to Remand; vacated the May 2006 Board decision; and remanded the moving party's appeal to the Board for additional action. In April 2007, the Board bifurcated the moving party's appeal; denied service connection for bronchial asthma with a history of bronchitis; and remanded the issue of service connection for bronchial asthma with a history of bronchitis secondary to herbicide exposure to the RO for additional action. The moving party subsequently appealed to the Court. In December 2009, the Court vacated that portion of the April 2007 Board decision which denied service connection for bronchial asthma with a history of bronchitis and remanded the moving party's appeal to the Board for additional action. In May 2010, the Board denied service connection for service connection for a respiratory disorder to include bronchial asthma with a history of bronchitis and allergic rhinitis to include as secondary to herbicide exposure. In support of its decision, the Board found that "the preponderance of competent and credible evidence shows no nexus between the post-service diagnosis of a respiratory disability, to include bronchial asthma with a history of bronchitis and allergic rhinitis, and service, to include exposure to herbicides." The moving party did not appeal the decision to the Court. Therefore, the Board's decision is final. CUE in the May 2010 Board Decision The moving party asserts that the Board's May 2010 decision ignored the multiple favorable private physicians' opinions as to the relationship between the in-service exposure to burning human waste and the subsequently diagnosed chronic respiratory disability. He contends that the Board's finding that the private medical opinions were of no probative "weight because they were based on the appellant's medical history" constitutes legal error. A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C.A. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-20.1411. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20 (2012). 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. 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. 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. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). In addressing the May 2010 Board decision and the relevant statutory and regulatory provisions, the Board finds that the Board decision incorrectly applied the law and regulations pertaining to the assessment of medical opinion evidence. The Court has directed that medical opinion evidence cannot be discredited solely upon its having been based upon the medical history taken by the physician and without a contemporaneous review of the claims record. Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). See also VAOPGCPREC 20-95 (interpreting that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide). Further, the Board may not substitute its own medical opinion for such evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The May 2010 Board decision concluded that: With respect to Dr. Seligman's August 1995 statement, while he indicated that the type of injury caused by burning human feces triggers asthma in genetically prone individuals, he did not indicate or suggest that the Veteran was such a genetically prone individual. The appellant testified that Dr. Seligman did not perform any tests to determine if he was genetically prone to develop asthma from such an injury, and the claimant also testified that he was not aware of any family history of the disorder. See June 2002 hearing transcript, pages 15-16. In short, there is no competent evidence that the Veteran is in fact the type of genetically prone individual mentioned by Dr. Seligman. Moreover, Dr. Seligman did not specifically note that the appellant performed burn duties on only a single occasion. *** As to Dr. Barasch's November 2002 opinion, he concluded, based on the Veteran's account to him of developing congestion and a cough after performing burn duties, that in light of the temporal relationship of those symptoms and the burn duty, it was possible that the duties played a role in the development of bronchial inflammation and reactive airways disease, and that the disorders may have developed in part from the inhalation of burning hydrocarbons. There is no indication, however, that Dr. Barasch reviewed the claims files, or that he was aware that the appellant did not perform burn duty for more than one day. Moreover, Dr. Barasch's use of the word "possible" renders his opinion speculative in nature. *** While the Veteran now has bronchial asthma with a history of chronic bronchitis, as well as allergic rhinitis, with the preponderance of competent and credible evidence not linking the diseases to service, the benefit sought on appeal cannot be granted. The May 2010 Board decision found that the favorable medical opinion evidence then before it was of no probative value because it was based upon the Veteran's subjective history, and because the opinion was advanced without either a contemporaneous review of the claims files or contemporaneous testing to determine if the moving party was "genetically prone to develop asthma." Such a determination that a medical opinion that is based solely or even primarily on a veteran's history is of no probative value is in conflict with the legal requirement to consider all evidence. See 38 U.S.C.A. § 5107(a). Such finding by the Board is an implicit erroneous finding that the veteran is not competent to relate such a history to the medical professional offering the opinion, which is inconsistent with the Courts' declarations as to lay competency. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007) (stating that a lay person is competent to identify a simple medical condition, to report a contemporaneous medical diagnosis, and to describe symptoms at the time that supports a later diagnosis by a medical professional). The Board's finding is also inconsistent with the Court's prohibitions in Kowalski and Colvin against ignoring medical opinion evidence because it is based on a lay history rather than medical records review. This constitutes legal error. Further, the May 2010 Board decision incorrectly applied the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. The record then before the Board contained three opinions addressing the relationship between the moving party's bronchial asthma and his in-service exposure to burning human waste. The opinions from Drs. Seligman and Barasch establish a relationship between active service and the moving party's bronchial asthma. The VA opinion advances no specific conclusion as to the existence of such a relationship. The evidence then before the Board is in at least equipoise as to the issue of service connection for bronchial asthma; therefore, the Board's determination to the contrary and its failure to properly apply the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 constitutes legal error. If not for the above cited legal errors, service connection for bronchial asthma clearly would have been established at the time of the May 2010 Board decision. Accordingly, the Board finds that the May 2010 Board decision denying service connection for a respiratory disorder to include bronchial asthma was clearly and unmistakable erroneous, and should be reversed (service connection granted). ORDER As the May 2010 Board decision was clearly and unmistakably erroneous in denying service connection for a respiratory disorder to include bronchial asthma, the May 2010 Board decision is reversed, so that service connection for bronchial asthma is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs