Citation Nr: 19109727 Decision Date: 02/07/19 Archive Date: 02/07/19 DOCKET NO. 17-07 861 DATE: February 7, 2019 ORDER The claim to revise the August 2005 and February 2012 rating decisions denying service connection for coronary artery disease (CAD) due to herbicide exposure based on clear and unmistakable error (CUE) is denied. FINDING OF FACT 1. The August 2005 and February 2012 rating decisions denied service connection for coronary artery disease (CAD). 2. The correct facts, as they were known at that time, were before the Agency of Original Jurisdiction (AOJ) in August 2005 and February 2012, and the AOJ correctly applied the statutory and regulatory provisions then in effect; the decision was supported by evidence then of record and was consistent with the law and regulations then in effect. CONCLUSION OF LAW The was no CUE in the August 2005 and February 2012 rating decisions that denied service connection for CAD. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 1965 to March 1972. The Veteran died in January 2010. The Appellant is his surviving spouse. 1. Whether the denial of entitlement to service connection for coronary artery disease (CAD) was clearly and unmistakably erroneous. The Appellant asserts that there is clear and unmistakable error in the rating actions that denied service connection for CAD due to herbicide exposure. For a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a); 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, either 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. Second, 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.” Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14. Here, the Veteran first claimed entitlement to service connection for coronary artery disease in February 2005. The August 2005 rating decision denied the claim. In response to the Appellant’s September 2010 letter regarding the amount of her income after the Veteran’s death, the AOJ performed a special review of the Veteran’s claim based on Nehmer. See Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Dept. of Veterans Affairs, 494 F.3d 846 (C.A. 9 2007). In a February 2012 rating decision, the AOJ continued the denial of service connection for CAD. Despite receiving notice of the decisions, the Veteran and Appellant did not perfect an appeal. In general, in the absence of CUE, rating decisions that are not timely appealed are final. The Veteran’s service treatment records were silent for complaints of or treatment for a heart disability. Thus, there was no basis for service connection under a direct theory of entitlement. The evidence is also silent for any indication of an ischemic heart disorder that manifested to a compensable degree within one year of separation. As such, there was no basis for presumptive service connection based on a chronic disability. 38 C.F.R. § 3.307(a)(3). In addition, under 38 C.F.R. § 3.307(a)(6), a Veteran who served in Vietnam during the period beginning January 9, 1962 through May 7, 1975 is presumed to have been exposed to herbicides and entitled to service connection for an ischemic heart disability on a presumptive basis. Although the Veteran served in Vietnam during the relevant time the evidence does not show that the Veteran had a diagnosis of coronary artery disease or other ischemic heart disease. A July 2001 VA examination showed a normal heart. A May 2002 VA treatment note indicates the Veteran complained of chest pain. A physical examination showed a normal heart and it was suspected that the reported chest pain was related to the chest wall. During a September 2003 VA examination, the Veteran denied any history of heart disease. His heart was normal with regular rate and rhythm. The Veteran was also afforded a VA examination in July 2005. The examiner found no evidence of coronary artery disease. A September 2008 VA emergency room treatment note indicates the Veteran’s heart was within normal limits. The Veteran was treated by a cardiologist. A chest x-ray showed no cardiopulmonary changes. A July 2009 VA treatment note indicates the Veteran’s suffered congestive heart failure. Notably, congestive heart failure is not an ischemic heart disease for the purpose of presumptive service connection. Although VA treatment notes indicate the Veteran was taking asprin as cardiovascular prophylaxis, such evidence does not support a finding of service connection as the evidence consistently shows the Veteran did not have a CAD diagnosis. In sum, the Board finds that the Appellant has not established that the correct facts, as known at the time, were not before the AOJ in August 2005 and February 2012, and has not shown that any incorrect application of statutory or regulatory provisions was outcome determinative (i.e., the outcome would have been manifestly different). Thus, the Board finds there was no CUE in the August 2005 and February 2012 rating decisions and the determinations are final. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel