Citation Nr: 18147128 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 14-33 682 DATE: November 5, 2018 ORDER The motion to reverse or revise the Board’s November 21, 2011 decision which denied service connection for the cause of the Veteran’s death, on the grounds of clear and unmistakable error (CUE), is denied. [The issue of entitlement to service connection for the cause of the Veteran’s death is the subject of a separate decision.] FINDINGS OF FACT 1. On November 21, 2011 the Board issued a decision in which it denied service connection for the cause of the Veteran’s death. 2. The November 2011 Board decision which denied service connection for the cause of the Veteran’s death considered the correct law and evidence as they then existed and was not the product of an undebatable error that would have changed the outcome. CONCLUSION OF LAW CUE in the Board’s November 21, 2011 decision that denied service connection for the cause of the Veteran’s death has not been demonstrated. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1404 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to March 1972. Service in the Republic of Vietnam is indicated by the record. The Veteran was the recipient of the combat infantry badge (CIB) and the Purple Heart Medal. He died in July 1998. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) following the receipt of the moving party’s June 2014 motion alleging CUE in a November 21, 2011 Board decision. 1. Whether there was CUE in the Board’s November 21, 2011 decision which denied service connection for the cause of the Veteran’s death. Under 38 U.S.C. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A motion requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board’s authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. In this case, the moving party’s motion for review or revision was received by the Board in June 2014. A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party’s representative. The motion must include the name of the Veteran; the name of the moving party, if other than the Veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board’s decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart. 38 C.F.R. § 20.1404(a). CUE motions must also clearly and specifically set forth the alleged error. 38 C.F.R. § 20.1404(b). Here, the moving party, through her attorney, has raised an assertion of CUE in the November 2011 Board decision, which denied a claim of entitlement to service connection for the cause of the Veteran’s death. For the reasons set forth below, the Board finds that CUE in the November 2011 Board decision has not been demonstrated. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) the correct facts, as they were known at the 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 be “undebatable” and of the sort “which had it not been made, would have manifestly 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 of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). In this matter, the moving party asserts that statutory or regulatory provisions extant at the time of the November 2011 decision were incorrectly applied in the Board’s denial of service connection for the cause of the Veteran’s death. See the appellant’s motion for CUE dated June 2014. Specifically, she argues that the November 2011 decision failed to recognize that the Health Care Eligibility Reform Act of 1996 (Public Law 104-262) identifies the Institute of Medicine as a resource by which the Secretary of VA should determine the association between the occurrence of a disease and Agent Orange. The moving party asserted that, “[c]ancer of the gastrointestinal tract [is] recognized by the Institute of Medicine to exceed the statutory threshold for a presumption of service connection associated with exposure to herbicides during the Vietnam Era.” Significantly, in the November 2011 decision, the Board reviewed the evidence of record and observed that the Veteran’s July 1998 death certificate listed his cause of death as respiratory failure due to metastatic adenocarcinoma of the stomach to the lungs. The Board explained that both contemporaneous medical evidence and medical records generated after the Veteran’s death reflected that the lung was not the primary cite of his adenocarcinoma. See the private treatment records dated May 1998 and June 1998; see the letter from Dr. D.M. dated July 2008; the letter from Dr. B.G. dated June 1998; the VA medical opinion dated July 2009; and the letter from Dr. B.G. dated September 2011. Rather, the Veteran’s fatal adenocarcinoma originated in either his esophageal or gastric regions. Id. The Board recognized that, as he served in the Republic of Vietnam, the Veteran was presumed to have been exposed to an herbicide agent, such as Agent Orange. 38 U.S.C. § 1116(f) (2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). To this end, where a veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer; respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea), and soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2011). Significantly, however, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). The November 2011 Board decision thus concluded that service connection for the Veteran’s fatal adenocarcinoma was not warranted on a presumptive basis. The Board November 2011’s conclusion was based upon evidence of record demonstrating that the Veteran’s fatal adenocarcinoma, originating in either the esophageal or gastric region, was not listed as a presumptive disease in the regulation. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2011). Contrary to the assertions of the appellant, the Board did not fail to apply statutes or regulations that were binding on its decision and/or pertinent to the cause of the death claim. The applicable law at the time of the November 2011 Board decision did not contain an outcome determinative finding by the Institute of Medicine to the extent that gastrointestinal cancer exceeds the statutory threshold for a presumption of service connection associated with exposure to herbicides during the Vietnam Era, as suggested by the moving party. Therefore, in the November 2011 Board decision, denial of service connection for the cause of the Veteran’s death was based upon proper application of the pertinent statutes and regulations. The record does not support a finding that the statutory and regulatory provisions appropriate to the moving party’s claim of entitlement to service connection for the cause of the Veteran’s death were incorrectly applied. There is also no indication that the correct facts, as they were known at the time of the November 2011 decision, were not before the Board. Accordingly, based upon the foregoing, the Board does not find CUE in the November 2011 Board decision, which denied entitlement to service connection for the cause of the Veteran’s death. The Veteran’s motion is therefore denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel