Citation Nr: 18145489 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-42 529 DATE: October 29, 2018 ORDER Reopening of a previously denied claim of service connection for hypertension is denied. Revision of a June 2001 Agency of Original Jurisdiction (AOJ) decision denying entitlement to compensation for a sciatic nerve problem due to surgery pursuant to 38 U.S.C. §1151, on the grounds of clear and unmistakable error (CUE), is denied. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to gastroesophageal reflux disease (GERD), is remanded. FINDINGS OF FACT 1. Denial of service connection for hypertension was confirmed in an unappealed April 2010 rating decision because new and material evidence had not been submitted; the underlying June 1977 denial was based on a lack of nexus to service. 2. Evidence received since the April 2010 rating decision denying service connection for hypertension is cumulative and redundant of the evidence of record at the time of the April 2010 final decision, and does not raise a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 3. In a decision dated June 2001, the AOJ denied the Veteran’s claim for entitlement to compensation for a sciatic nerve problem due to surgery pursuant to 38 U.S.C. §1151 on the basis that there was no evidence of fault on the part of VA that caused additional disability. 4. The AOJ’s June 2001 decision was not based on CUE. CONCLUSIONS OF LAW 1. The April 2010 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for hypertension based on new and material evidence have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for revision of the AOJ’s June 2001 decision on the grounds of CUE have not been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 20.1200, 20.1401, 20.1403, 20.1404 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1964 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that the Veteran has a separate appeal stream pertaining to a claim for entitlement to an increased disability rating for inferior alveolar neuralgia, a left mandible fracture, and an anxiety disorder, as well as entitlement to retroactive benefits under Nehmer for the issuance of service connection for ischemic heart disease as a result of exposure to herbicide agents. This appeal has not yet been certified to the Board and thus, it is not before the Board for adjudication at this time. New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.” 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for service connection for hypertension Service connection for hypertension was denied in a June 1997 rating decision, based on a lack of nexus between service and current disability. The Veteran eventually sought to reopen this claim, but such was denied in an unappealed April 2010 decision. This decision is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence of record consisted of service treatment records showing no complaints, diagnosis, or treatment related to hypertension; VA and private medical records showing a current diagnosis; records related to herbicide exposure; and statements from the Veteran. Since April 2010, VA has received evidence and allegations regarding herbicide exposure, as well as the Veteran’s renewed allegations. The Veteran was previously adjudicated as having not been exposed to herbicides, and so evidence regarding such, all of which repeats previously considered facts, has no probative value and cannot be new and material. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Other evidence reiterates the fact of diagnosis, and hence is not new or material; the same is true of the Veteran’s renewed allegations. In essence, the Veteran seeks reconsideration of his claim on the same facts as in 2010; reopening is therefore not warranted. 2. Whether there was CUE in the June 2001 decision of the AOJ that denied entitlement to compensation for a sciatic nerve problem due to surgery pursuant to 38 U.S.C. § 1151 In September 2000, the Veteran filed a claim for compensation pursuant to 38 C.F.R. § 1151, suggesting that the VA did not properly perform the surgery to remove a schwannoma of his left buttock and injured him further. The June 2001 rating decision denied the Veteran’s claim, stating that the medical evidence did not establish that the Veteran’s pain in his left lower extremity was related to his schwannoma removal of the left buttock. Medical records consistently note the Veteran’s sciatic nerve pain. He has since filed this new claim for compensation suggesting the June 2001 decision was based on clear and unmistakable error, and his representative argues that VA is not competent to address whether the Veteran’s sciatic nerve pain was caused by his schwannoma removal surgery based on a review of the records. The statute and implementing regulations provide that a decision is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a decision based on CUE may be instituted by the Board’s own motion or upon request of the claimant. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. Here, the Board has interpreted the Veteran’s October 2015 VA Form 9 as a motion for review or revision. There is a three-prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel, 6 Vet. App. at 245. Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). CUE is a very specific and rare kind of “error.” It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Russell, 3 Vet. App. at 313-14. Therefore, the doctrine of resolving reasonable doubt in favor of the Veteran does not apply to allegations of CUE. 38 C.F.R. § 3.105 (a); Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). As will be discussed below, the Board finds no evidence of CUE in the prior June 2001 AOJ decision. At the time of the June 2001 AOJ decision, 38 U.S.C. § 1151 read as follows: (a) “Compensation under this chapter…and dependency and indemnity compensation under chapter 13 of this title…shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was-- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title [38 U.S.C.S §§ 3100 et seq.], or (B) by participation in a program (known as a “compensated work therapy program”) under section 1718 of this title. At the time of the prior AOJ decision, the evidence of record included VA treatment records, notably those pertaining to the Veteran’s surgery. In May 1997, the Veteran underwent surgery to remove a schwannoma from his left buttock. Prior to this surgery, he had pain radiating to the posterior aspect of his left thigh. Treatment records from the surgery note the procedure was “uneventful.” They did, however, note that he had “difficulty originally with pain medications controlling his pain,” but after a couple days, he had good pain control; he was discharged on day 3 post-operation. However, a psychology note from June 1997 indicates the Veteran was in “moderately severe pain” following this surgery. By September 1997, he was doing better, but still had left hip and leg pain. These records assessed the Veteran as having chronic pain, status-post surgery. As noted previously, the June 2001 rating decision denied the Veteran’s claim, stating that the medical evidence did not establish that the Veteran’s pain in his left lower extremity was related to his schwannoma removal of the left buttock. The Veteran and his representative have offered two separate arguments they allege constitute CUE on the part of the AOJ in the June 2001 rating decision. The Board will address each of these contentions. Initially, the Veteran and his representative suggest that the AOJ substituted its own medical knowledge to determine that there was no additional disability resulting from the VA treatment he received that was the result of carelessness, negligence, or the lack of proper skill on the part of VA in violation of Colvin v. Derwinski, 1 Vet. App. 171 (1991). In reviewing the record, the Board does not find that the decision review officer’s (DRO) opinion relied on his own medical expertise; instead, it was based on the evidence of record at the time. These records reflect what was stated previously: that the surgery had no complications, that he had pain in his left thigh prior to his surgery, and that while the Veteran had issues with pain management initially post-op, he was discharged in stable condition. As such, the Board finds the AOJ’s June 2001 decision was not CUE based on a Colvin violation, or failure to address the law correctly. The Veteran and his representative then argue that VA should have sought a medical opinion as to the Veteran’s claim for entitlement to compensation for a sciatic nerve problem due to surgery pursuant to 38 U.S.C. § 1151. The Board advises that the Veterans Claims Assistance Act of 2000 (VCAA) citing the VA’s duty to assist is inapplicable to claims of CUE in prior decisions, and VA’s duties to notify and assist contained in the VCAA are not applicable to such motions. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); see also VAOPGCPREC 12-2001. Furthermore, the evidence of record was sufficient enough to adjudicate the Veteran’s claim without seeking a medical opinion. In essence, the Veteran argues that the Board improperly weighed evidence, which in the absence of an error of fact or law cannot constitute CUE. As such, the Board finds that AOJ’s June 2001 decision was not based on CUE and the motion for revision is therefore denied. REASONS FOR REMAND 1. Entitlement to service connection for IBS, to include as secondary to GERD, is remanded. The Veteran contends that he suffers from IBS and believes it is directly related to his GERD. Medical records indicate that on several occasions, the Veteran experienced constipation with no specified cause. On a June 2014 VA examination for GERD, it was not noted that the Veteran experienced symptoms consistent with IBS. The Veteran’s VA treatment records also do not indicate a diagnosis of this condition. The Board notes that the Veteran has not received a VA examination for IBS; consequently, the Board will remand to afford the Veteran the opportunity to present for an examination to determine whether he has IBS and if so, whether it is related to his service-connected GERD. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate such with the claims file. 2. Schedule the Veteran for a VA Intestines/Digestive Conditions examination. The claims folder must be reviewed in conjunction with the examination. The examiner must state whether the Veteran has irritable bowel syndrome or a similar condition, and if so, whether such is at least as likely as not related to (caused or aggravated by) military service or a service-connected disability, to include GERD. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel