Citation Nr: 18158605 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-51 065 DATE: December 17, 2018 ORDER Entitlement to an effective date earlier than November 14, 2011, for the grant of service connection for the cause of the Veteran's death, to include whether there is clear and unmistakable error (CUE) in prior rating decisions, is denied. FINDINGS OF FACT 1. A September 2008 rating decision denied a claim of entitlement to service connection for the cause of the Veteran’s death. The appellant was informed of the decision, including her right to appeal. She did not appeal the decision, and new and material evidence was not received within one year of the notice of that rating decision. 2. On November 14, 2011, the regional office (RO) received the appellant’s claim to reopen a claim of entitlement to service connection for the cause of the Veteran’s death. 3. In a December 2015 decision, the Board reopened and granted a claim of entitlement to service connection for the cause of the Veteran’s death. In a February 2016 rating decision, the RO granted an effective date of November 14, 2011, for the grant of service connection. 4. There was no formal claim, informal claim, or written intent to file a claim to reopen a claim of entitlement to service connection for the cause of the Veteran’s death between October 2, 2008, and November 13, 2011. 5. An October 2006 rating decision that denied entitlement to service connection for lung cancer, to include as due to asbestos exposure, was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 6. An April 2007 rating decision that denied entitlement to service connection for asbestosis was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 7. The September 2008 rating decision that denied entitlement to service connection for a throat disorder was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 8. The September 2008 rating decision that denied the reopening of the claims of entitlement to service connection for chronic obstructive pulmonary disease (COPD), lung cancer, and asbestosis did not involve undebatable error that would have led to a materially different outcome for any of the three claims. 9. The September 2008 rating decision that denied entitlement to service connection for the cause of the Veteran’s death was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied entitlement to service connection for lung cancer, to include as due to asbestos exposure, does not contain CUE. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105(a) (2017). 2. An April 2007 rating decision that denied entitlement to service connection for asbestosis does not contain CUE. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). 3. The September 2008 rating decision that denied entitlement to service connection for a throat disorder; denied the reopening of the claims of entitlement to service connection for COPD, lung cancer, and asbestosis; and denied entitlement to service connection for the cause of the Veteran’s death does not contain CUE. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). 4. The August 2008 rating decision, which denied service connection for the cause of the Veteran’s death, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 5. The criteria for entitlement to an effective date earlier than November 14, 2011, for the grant of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 511, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1960 to July 1964. The Veteran died in April 2008. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals from a February 2016 rating decision of the Department of Veterans Affairs (VA) RO implementing a December 2015 Board decision reopening and granting a claim of entitlement to service connection for the cause of the Veteran’s death. Earlier Effective Date VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The appellant and her representative have not raised any issues as to the duty to notify or duty to assist other than claiming a violation of the duty to assist in prior rating decisions as part of the CUE claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The United States Court of Appeals for Veterans Claims (the Court) has held that the statutory and regulatory provisions pertaining to VA’s duty to notify and to assist do not apply to allegations of CUE in prior final decisions, because a CUE motion is not a claim or an appeal, but is a collateral attack upon a previous final decision. Livesay v. Principi, 15 Vet. App. 165, 178 (2001); Simmons v. Principi, 17 Vet. App. 104, 109 (2003). Governing law and regulations Effective date In general, a decision of the RO becomes final and binding and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The decision does not become final, however, unless the appellant is notified of the decision. 38 C.F.R. § 3.103(a) (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection and a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be, “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(r) (2017). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims – formal and informal – for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from an appellant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to an appellant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed that meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. If there is CUE in a prior rating decision, the effective date is the date form which benefits would have been payable if the corrected decision had been made on the date of the revised decision. 38 C.F.R. § 3.400(k) (2017). CUE A final decision may be subject to revision on the basis of CUE. See 38 C.F.R. § 3.104(a) (2017). The Court has defined CUE as “an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has provided a three-pronged test to determine whether CUE is present in a prior determination: (1) ‘[E]ither 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 clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). In Fugo v. Brown, 6 Vet. App. 40, 43 (1993), the Court further held that CUE is one of 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 have been manifestly different but for the error. When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and, unless it is the kind of error, that if true, would be CUE on its face, must provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Id. at 43-44. In Fugo, the Court further held that neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process), meet the restrictive definition of CUE. Id. at 44. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE a claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). To show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Law and regulations in effect at the time of the 2006, 2007, and 2008 rating decisions As noted above, the Board must apply the law and regulations which were in effect at the time of the decision being challenged on the basis of CUE. The pertinent regulations follow. In general, service connection may be granted for disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2002). Certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137 (2002); 38 C.F.R. §§ 3.307, 3.309 (2006). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C. The Court has held that VA must analyze an appellant’s claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2002). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2008). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis The September 2008 rating decision denied a claim of entitlement to service connection for the cause of the Veteran’s death. The appellant was informed of the decision, including her right to appeal, in an October 2, 2008, letter. She did not appeal the decision, and new and material evidence was not received within one year of the notice of that rating decision. The September 2008 rating decision is final but can be subject to revision based on CUE. On November 14, 2011, the RO received the appellant’s claim to reopen a claim of entitlement to service connection for the cause of the Veteran’s death. In a December 2015 decision, the Board reopened and granted a claim of entitlement to service connection for the cause of the Veteran’s death. In a February 2016 rating decision, the RO granted an effective date of November 14, 2011, for the grant of service connection. A review of the claims file reveals no formal claim, informal claim, or written intent to reopen the claim of service connection for the cause of the Veteran’s death was presented prior to November 14, 2011. Neither the appellant nor her representative has identified any document dated prior to November 14, 2011, indicating an intent to reopen the claim of service connection for the cause of the Veteran’s death. Indeed, the appellant is not arguing that she filed a claim to reopen prior to November 14, 2011. Instead, she is arguing that there is CUE in prior rating decisions. Thus, there was no formal claim, informal claim, or written intent to file a claim to reopen a claim of entitlement to service connection for the cause of the Veteran’s death between October 2, 2008, and November 13, 2011. In an October 2016 attachment to her VA Form 9, the appellant argued that there is CUE in the October 2006 rating decision denying service connection for lung cancer, to include as due to asbestos exposure. She argued that there was a failure in the duty to assist because VA failed to follow its own regulations in developing a claim for a disability related to asbestos exposure. The failure in the duty to assist is not CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208, 214 (1998) (a claim of misdiagnosis could be interpreted as either assertion of failure to satisfy duty to assist or disagreement with weighing of facts, neither of which can be clear and unmistakable error). The appellant noted that the October 2006 rating decision conceded exposure to asbestos. In her May 2016 attachment to her notice of disagreement, she noted the medical evidence dated starting in November 2007 that showed lung cancer. This medical evidence cannot be considered by the Board. As explained above, only evidence which was of record at the time of the October 2006 rating decision may be considered. Damrel, 6 Vet. App. at 245. The appellant does not identify evidence existing at the time of the October 2006 rating decision but not before the adjudicator that would have resulted in a grant of service connection for lung cancer. Similarly, she does not identify any specific law or regulation that was in effect in October 2006, was misapplied by the RO, and would have resulted in a grant of service connection for lung cancer other to note that M21-1MR states that inhalation of asbestos fibers can produce lung cancer. The evidence of record at the time of the October 2006 rating decision did not show that the Veteran had lung cancer. A September 2006 VA examination report reveals that the examiner determined after reviewing all of the medical records that the Veteran did not have carcinoma of the lungs. VA treatment records at the time of the October 2006 rating decision did not reveal a diagnosis of lung cancer. Based on the evidence of record at the time of the October 2006 rating decision – that is, the September 2006 VA examination report and VA treatment records – it is hardly “undebatable” that the Veteran had lung cancer related to in-service asbestos exposure. The October 2006 rating decision that denied entitlement to service connection for lung cancer, to include as due to asbestos exposure, was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. In short, for the reasons and bases expressed above, the Board finds that the October 2006 decision did not contain CUE. In her May and October 2016 statements, the appellant argued that there is CUE in the April 2007 rating decision denying service connection for asbestos. She argued that there was a failure in the duty to assist because VA failed to follow its own regulations in developing a claim for a disability related to asbestos exposure. As noted above, the failure in the duty to assist is not CUE. See Henry, 2 Vet. App. At 90; see also Shockley, 11 Vet. App. at 214. In her May and October 2016 statements, she noted the medical evidence dated after the April 2007 rating decision that shows pleural plaques and a diagnosis of asbestosis, to include a September 2015 statement from the Veteran’s treating VA physician. This medical evidence cannot be considered by the Board. As explained above, only evidence which was of record at the time of the April 2007 rating decision may be considered. Damrel, 6 Vet. App. at 245. The appellant further argued that there was evidence of pleural plaques and pleural effusions as well as a diagnosis of asbestosis by the Veteran’s treating VA physician at the time of the April 2007 rating decision. Boiled down to its essence, the appellant is merely expressing disagreement as to how the evidence extant at the time of the April 2007 RO rating decision was weighed and evaluated. Such a disagreement cannot constitute a valid claim of CUE. See Fugo, 6 Vet. App. at 44 (“to claim CUE on the basis that previous adjudicators had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE”). To address this argument, the Board would have to engage in reevaluating each piece of evidence of record in April 2007 to determine how probative it is, in pursuit of reaching its own conclusion as to whether the Veteran had asbestosis. Such an inquiry requires weighing and evaluating evidence which, as stated above, cannot constitute a valid claim of CUE. The appellant does not identify evidence existing at the time of the April 2007 rating decision but not before the adjudicator that would have resulted in a grant of service connection for asbestosis. Similarly, she does not identify any specific law or regulation that was in effect in April 2007, was misapplied by the RO, and would have resulted in a grant of service connection for asbestosis other than to note the discussion in M21-IMR about the existence of asbestosis. The evidence of record at the time of the April 2007 rating decision did not unequivocally show that the Veteran had asbestosis. A September 2006 VA examination report reveals that the examiner determined after reviewing all of the medical records that the Veteran did not have clinical signs or symptomatology of asbestosis. Based on the evidence of record at the time of the April 2007 rating decision – that is, the September 2006 VA examination report – it is hardly “undebatable” that the Veteran had asbestosis related to in-service asbestos exposure. The April 2007 rating decision that denied entitlement to service connection for asbestosis was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. In summary, for the reasons and bases expressed above, the Board finds that the April 2007 decision did not contain CUE. In her May 2016 statement, the appellant argued that the claim for service connection for a throat disorder should have been reopened in the September 2008 rating decision. The Board notes that service connection for a throat disorder was denied on a de novo basis in the September 2008 rating decision. In her May 2016 statement, she notes that M21-1MR provides that cancers of the pharynx are associated with asbestos exposure and that therefore service connection should have been granted for the retromolar trigone. While M21-1MR does provide that cancers of the pharynx are associated with asbestos exposure, there still must be medical nexus evidence relating the Veteran’s cancer to in-service asbestos exposure. The medical evidence of record at the time of the September 2008 rating decision did not show that the retromolar trigone was related to in-service asbestos exposure. VA treatment records and the September 2006 VA examination report do not relate the retromolar trigone to in-service asbestos exposure. The Veteran’s pharyngeal cancer was first related to in-service asbestos exposure in the September 2011 statement from his treating VA physician. The treating physician noted that the Veteran was diagnosed simultaneously with retromolar trigone and lung cancer and that lung cancer was the primary cancer. The doctor opined that it is as likely as not that the Veteran’s death from lung cancer was directly related to in-service asbestos exposure. However, only evidence which was of record at the time of the September 2008 rating decision may be considered in the CUE claim. Damrel, 6 Vet. App. at 245. The September 2008 rating decision that denied entitlement to service connection for a throat disorder was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. Put simply, for the reasons and bases expressed above, the Board finds that the September 2008 decision did not contain CUE as to the denial of service connection for a throat disorder. In her May 2016 statement, the appellant argued that the claims for service connection for COPD, lung cancer, and asbestosis should have been reopened in the September 2008 rating decision. Service connection was denied for COPD, lung cancer, and asbestosis in February 2002, October 2006, and April 2007 rating decisions, respectively, on the basis that there was no evidence of a current disability as to all three claims. VA treatment records dated after the February 2002 rating decision show a diagnosis of COPD. Therefore, the RO should have reopened the claim of entitlement to service connection for COPD and reviewed the claim on a de novo basis. The RO’s failure to reopen the claim of entitlement to service connection for COPD would not have manifested changed the outcome at the time it was made. The medical evidence of record did not show that the Veteran’s COPD was related to in-service asbestos exposure. The September 2006 VA examiner stated that the COPD was secondary to cigarette smoking. In other words, the appellant has not presented persuasive reasons as to why service connection would have been granted for COPD but for the failure to reopen that service connection claim. Based on the evidence of record at the time of the September 2008 rating decision – that is, the September 2006 VA examination report and VA treatment records – it is hardly “undebatable” that the Veteran had COPD related to in-service asbestos exposure. The September 2008 rating decision that denied the reopening of the claim of entitlement to service connection for COPD did not involve undebatable error that would have led to a materially different outcome for a claim of entitlement to service connection for COPD. In short, for the reasons and bases expressed above, the Board finds that the September 2008 decision did not contain CUE as to the denial of the reopening of the claim of service connection for COPD. As for the claim to reopen service connection for lung cancer, a March 2008 VA treatment record shows that a computed tomography (CT) scan of the chest revealed numerous, bilateral pulmonary nodules consistent with metastasis. Thus, the RO should have reopened the claim of entitlement to service connection for lung cancer and reviewed the claim on a de novo basis. The RO’s failure to reopen the claim of entitlement to service connection for lung cancer would not have manifested changed the outcome at the time it was made. While the appellant noted in the May 2016 statement that M21-1MR states that inhalation of asbestos fibers can produce lung cancer, medical nexus evidence is still necessary to relate the Veteran’s lung cancer to his in-service asbestos exposure. The medical evidence of record at the time of the September 2008 rating decision did not show that the Veteran’s lung cancer was related to in-service asbestos exposure. The Veteran’s lung cancer was first related to in-service asbestos exposure in a September 2011 statement from his treating VA physician. However, only evidence which was of record at the time of the September 2008 rating decision may be considered in the CUE claim. Damrel, 6 Vet. App. at 245. The appellant has not presented persuasive reasons as to why service connection would have been granted for lung cancer but for the failure to reopen that service connection claim. Based on the evidence of record at the time of the September 2008 rating decision – that is, the September 2006 VA examination report and VA treatment records – it is hardly “undebatable” that the Veteran had lung cancer related to in-service asbestos exposure. The September 2008 rating decision that denied the reopening of the claim of entitlement to service connection for lung cancer did not involve undebatable error that would have led to a materially different outcome for a claim of entitlement to service connection for lung cancer. In summary, for the reasons and bases expressed above, the Board finds that the September 2008 decision did not contain CUE as to the denial of the reopening of the claim of service connection for lung cancer. As for the claim to reopen service connection for asbestosis, in the October 2016 statement, the appellant argued that there was a failure in the duty to assist because VA failed to follow its own regulations in developing a claim for a disability related to asbestos exposure. The failure in the duty to assist is not CUE. See Henry, 2 Vet. App. at 90; see also Shockley, 11 Vet. App. at 214. An August 2007 VA treatment record shows that the Veteran’s treating physician again made an assessment of asbestosis. Thus, the RO should have reviewed the claim of service connection for asbestosis on a de novo basis because new and material evidence regarding the existence of a current disability was received within one year of the April 2007 rating decision denying service connection for asbestosis on the basis of no current disability. The RO’s failure to review the claim of entitlement to service connection for asbestosis on a de novo basis would not have manifested changed the outcome at the time it was made. The appellant has not presented persuasive reasons as to why service connection would have been granted for asbestosis but for the failure to review that service connection claim on a de novo basis. The evidence of record at the time of the September 2008 rating decision did not unequivocally show that the Veteran had asbestosis. A September 2006 VA examination report reveals that the examiner determined after reviewing all of the medical records that the Veteran did not have clinical signs or symptomatology of asbestosis. Based on the evidence of record at the time of the September 2008 rating decision – that is, the September 2006 VA examination report – it is hardly “undebatable” that the Veteran had asbestosis related to in-service asbestos exposure. The September 2008 rating decision that denied the reopening of the claim of entitlement to service connection for asbestosis did not involve undebatable error that would have led to a materially different outcome for that service connection claim. Put simply, for the reasons and bases expressed above, the Board finds that the September 2008 decision did not contain CUE as to the denial of the reopening of the claim of service connection for asbestosis. The May and October 2016 statements reflect that the appellant is essentially claiming CUE in the September 2008 rating decision denying service connection for the cause of the Veteran’s death. In her May 2016 statement, she notes that M21-1MR provides that cancers of the pharynx are associated with asbestos exposure and that therefore service connection should have been granted for the retromolar trigone. While M21-1MR does provide that cancers of the pharynx are associated with asbestos exposure, there still must be medical nexus evidence relating the Veteran’s cancer to in-service asbestos exposure. The medical evidence of record at the time of the September 2008 rating decision did not show that the cause of the Veteran’s death was related to in-service asbestos exposure. The death certificate lists the immediate cause of death as retromolar trigone with COPD being a leading cause of death. VA treatment records and the September 2006 VA examination report do not relate the retromolar trigone and COPD to in-service asbestos exposure. In fact, the September 2006 VA examiner related the COPD to cigarette smoking. The Veteran’s retromolar trigone was first related to in-service asbestos exposure in the September 2011 statement from his treating VA physician. The treating physician noted that the Veteran was diagnosed simultaneously with retromolar trigone and lung cancer and that lung cancer was the primary cancer. The doctor opined that it is as likely as not that the Veteran’s death from lung cancer was directly related to in-service asbestos exposure. However, only evidence which was of record at the time of the September 2008 rating decision may be considered in the CUE claim. Damrel, 6 Vet. App. at 245. The September 2008 rating decision that denied entitlement to service connection for the cause of the Veteran’s death was supported by the evidence then of record; and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. In summary, for the reasons and bases expressed above, the Board finds that the September 2008 decision did not contain CUE as to the denial of service connection for the cause of the Veteran’s death. In the absence of CUE in a prior rating decision, an effective date earlier than November 14, 2011, for the grant of service connection for the cause of the Veteran’s death is not warranted. In a July 2018 appellant’s brief, the representative argued that an effective date in July 2008 when the appellant filed her initial claim for service connection for the cause of the Veteran’s death is warranted because of the September 2015 statement from the Veteran’s treating physician relating his cause of death to in-service asbestos exposure. To some degree, the representative appears to be raising an argument couched in equity in that the representative contends that the evidence after the initial claim eventually showed that the cause of death was related to service. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against a finding that an effective date earlier than November 14, 2011, for the grant of service connection for the cause of the Veteran’s death is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel