Citation Nr: 18143052 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-44 686 DATE: October 17, 2018 ORDER The motion to revise or reverse based on clear and unmistakable error (CUE) a May 13, 2015 decision of the Board of Veterans' Appeals (Board) that denied service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. A May 13, 2015 Board decision denied service connection for the cause of the Veteran’s death; this decision is final as no appeal was filed with the Court of Appeals for Veterans claim and no new and material evidence was received prior to expiration of the appeal period. 2. The correct facts, as known at the time, were before the Board in May 2015 and the statutory and regulatory provisions extant at the time were correctly applied by the Board. CONCLUSION OF LAW The May 13, 2015 Board decision is final; and the criteria to reverse or revise the May 13, 2015 Board decision based on CUE are not met. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1100, 20.1400, 20.1403 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Moving Party (L.P.) is the surviving spouse of a Veteran who served on active duty from April 1968 to April 1971. Following the Veteran’s death, L.P. filed a claim for service connection for the cause of the Veteran’s death. The Veteran died in August 2006 from liver failure; chronic obstructive pulmonary disease (COPD) was listed as a significant contributing cause of death, but not an underlying cause of death. The L.P. argued that the Veteran had symptoms of COPD in service that contributed to his death. In a May 13, 2015 decision, the Board denied the claim. The Board found that there was clear and unmistakable evidence that the Veteran had preexisting chronic bronchitis (a form of COPD) on service entry and that the increase in severity, if any, in service was due to its natural progress and was transitory. The Board further found that a disability incurred or aggravated in service neither caused nor contributed substantially or materially to cause the Veteran’s death. The Board notified the L.P. of that decision and how to appeal or request reconsideration. In December 2015, the Board denied the appellant’s motion for reconsideration. Also, in a December 2015 letter to the appellant, the Board acknowledged her motion for revision or reversal based on CUE, and provided guidance on the rules pertaining to CUE motions. In this case, as an initial matter, the Board finds that the May 2015 Board decision is final because, prior to expiration of the appeal period, the L.P. did not file an appeal with the Court of Appeals for Veterans Claims and VA received no new and material evidence. 38 U.S.C. § 20.1100. Whether a May 2015 Board decision should be revised or reversed based on CUE. L.P. contends that a May 2015 Board decision contains CUE and should be revised or reversed on those grounds. The Board concludes that, the correct facts, as known at the time, were before the Board when rendering the May 2015 decision and the statutory and regulatory provisions extant at the time were correctly applied by the Board. Consequently, the motion for revision or reversal based on CUE is denied. In relevant part, the law provides that a final decision by the Board is subject to revision on the grounds of CUE. If evidence establishes such error, the prior Board decision shall be reversed or revised. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. CUE is a very specific and rare kind of error. 38 C.F.R. § 20.1403(a). It is the kind of error of fact or law which, 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. 38 C.F.R. § 20.1403(a); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). Generally, either the correct facts, as there were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). To establish CUE, a claimant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403(b), (c); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999); King v. Shinseki, 26 Vet. App. 433 (2014). In this case, L.P. argues that the May 2015 Board decision incorrectly applied the presumption of soundness as to the aggravation prong. She suggests that the Board erroneously shifted the burden of proof from VA to the claimant as to the aggravation element. Having carefully reviewed the May 2015 Board decision, the undersigned disagrees. First, the May 2015 Board decision correctly identified the applicable law pertaining to rebutting the presumption of soundness, which provides that there must be clear and unmistakable evidence showing that a disorder preexisted service, and clear and unmistakable evidence showing that the disorder was not aggravated by service (or that any increase was due to the natural progress of the disease)—citing to 38 U.S.C. § 1111 (West 2014) and Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Second, the May 2015 decision reflects that the burden of proof was at no time shifted from VA to the claimant. Stated differently, the May 2015 Board decision reflects the finding that clear and unmistakable evidence showed no aggravation in service of the Veteran’s pulmonary disorder. The May 2015 Board decision shows consideration of the Veteran’s service treatment records, lay statements of L.P. and her son, and an October 2011 VA medical opinion prepared by a Board-Certified Pulmonologist. There is no indication that the Board shifted any burden of proof in this case to the appellant (L.P.). The May 2015 Board discussion of the relevant evidence does not reflect that L.P. was required to show in-service aggravation of preexisting pulmonary disorder; but rather that the Board assigned greater probative value to the October 2011 VA medical opinion that there was no in-service aggravation of pulmonary disorder, and explained the basis for assigning more weight to that opinion over the lay evidence. In this regard, the record shows that, during the development of the claim prior to reaching the Board in May 2015, VA procured the October 2011 VA medical opinion, which the Board at that time deemed to be both persuasive and competent evidence on the medical question of whether there was clear and unmistakable evidence the Veteran’s preexisting disorder was not aggravated in service. While the medical opinion relied upon by the Board in its May 2015 decision was unfavorable to the appellant’s claim, this does not translate to any affirmative shifting the burden of proof by the Board. Also, while L.P., the appellant in that case, was free to submit medical evidence favorable to the claim, there is no finding in the May 2015 Board decision that the claimant failed to meet any evidentiary burden. Hence, the Board finds her argument without merit. The L.P. has further argued that the correct facts were not before the Board at the time of the May 2015 Board decision. L.P. quarrels with the interpretation of the STRs reviewed by the October 2011 VA pulmonologist in connection with his medical opinion. Specifically, L.P. states that there is conflict between important pieces of clinical evidence: “If the veteran denied having ever had a chronic cough in 1971, does that mean his self-reported claim in 1968 was inaccurate? Or does it mean his 1971 separation examination is false?” L.P. concludes that the Veteran’s 1971 service separation examination is false based on her review of other medical entries and, therefore, the VA medical opinion was predicated on an inaccurate factual premise, thereby rendering the May 2015 Board decision fatally flawed. To the extent that the L.P. disagrees with the conclusions reached by the October 2011 VA pulmonologist, the Board finds she has not presented any evidence that the facts relied upon by the VA pulmonologist were on their face incorrect. She appears to disagree with the reasoning and medical conclusions reached by the VA pulmonologist along with his choice of medical/history entries deemed more relevant than others. In this regard, the Board observes that the L.P. has not proffered relevant service records not previously associated with the claims file. Her arguments appear to represent disagreements as to how the facts were weighed or evaluated by both the VA pulmonologist opining in this case and, also, the Board at that time. The undersigned considered whether there was clear and unmistakable evidence of both preexisting disorder and no aggravation since L.P. argues that neither is shown by the record. However, the undersigned believes that, at best, the matter is one where reasonable minds could differ, and not a situation where there is only one reasonable answer or outcome. Therefore, the Board finds that, at the time of the May 2015 Board decision, it was reasonable for the Board to have relied upon the October 2011 VA pulmonologist’s medical opinion. The Board has considered the appellant’s allegation that the May 2015 Board decision failed to meet the spirt of the law, and that it was “shoddy, incomplete, internally inconsistent, irrational, and flies in the face of the mission of the Boards…” However, the Board finds that these allegations are vague and unspecific, which do not lend themselves to any meaningful judicial scrutiny. Also, the Board is bound by the law, and without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Sound and well-reasoned bases were provided for the May 2015 Board conclusion that there was clear and unmistakable evidence of disability preexisting service entry and no aggravation (permanent worsening beyond natural progression). Moreover, the correct facts, as known at the time, were before the Board in May 2015 and the statutory and regulatory provisions extant at the time were correctly applied by the Board. (Continued on the next page)   Accordingly, the motion for reversal or revision based on CUE is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Skow, Counsel