Citation Nr: 20060147 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 20-21 306 DATE: September 14, 2020 ORDER The motion for reversal or revision of a May 2003 Board of Veterans’ Appeals (Board) decision that denied service connection for hypertension, on the basis of clear and unmistakable error (CUE), is denied. FINDING OF FACT In May 2003, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied; and, there is no showing of any error in this regard that, but for the error, would have manifestly changed the outcome of the decision on the claim. CONCLUSION OF LAW As CUE was not committed in the May 2003 Board denial of service connection for hypertension, revision or reversal of the decision on that basis is not warranted. 38 U.S.C. § 7111 (West 2002 and 2014); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2002 and 2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1943 to January 1946, and May to November 1951. The Veteran is deceased; the moving party, or movant, is the Veteran’s surviving spouse. This matter is before the Board as an original action on a September 2018 motion alleging CUE in a May 2003 Board decision. By way of background, the Veteran filed an original claim for service connection for hypertension in April 2000. The claim was initially denied in a September 2000 rating decision. It was subsequently denied on appeal in a May 2003 Board decision, which also denied another claim not at issue here. Initially, the Board notes that the rating decision prior to the May 2003 Board decision that denied service connection for hypertension was subsumed by that decision and can no longer be the subject of a CUE motion. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); 38 C.F.R. § 20.1104; see also Manning v. Principi, 16 Vet. App. 534, 540 (2002) (citing Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998)); Duran v. Brown, 7 Vet. App. 216, 224 (1994). For that reason, and based on the September 2018 motion, the Board construes the movant’s motion as only pertaining to the Board’s May 2003 decision, even though there is reference to the prior rating decision. In any event, to the extent the motion is meant to challenge the earlier rating decision as well, it must be emphasized that, as a matter of law, it was subsumed by the Board’s May 2003 decision and, thus is no longer subject to challenge. The moving party’s main argument is that that the Board’s May 2003 finding that the letter provided by the Veteran’s former employer noting that the Veteran had elevated blood pressure readings was not a statement provided by a person with medical training—although signed by a “Dr”—was in error. The movant argues that in the absence of the records, the school employee, Dr. J.C., was merely providing a statement concerning physical exams which the Veteran was required to provide each year and that the Board was therefore informed of his hypertension. The movant contends that the Board should have considered the fact that he was diagnosed with hypertension and provided medical documents, that he applied for hypertension in April 2000, and that he suffered from service-connected PTSD, back, and stomach conditions, which would have contributed to his developing hypertension at the time of his service. However, considering the above in light of the governing legal authority and relevant evidence, the Board finds that CUE in the May 2003 decision denying service connection for hypertension is not established. A final decision by the Board is subject to being revised or reversed on the grounds of CUE. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 20.1404(b). Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Id. Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. Id; see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). CUE is the kind of error, either 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); Damrel v. Brown, 6 Vet. App. 242 (1994) (citing Russell v. Principi, 3 Vet. App. 310 (1992)). To establish CUE, it must be shown either that the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied, thus affecting the outcome of the decision. Id. The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal that, had it not been made, would have manifestly changed the outcome of the decision. 38 C.F.R. § 20.1403(c). If it is not absolutely clear that a different result would have ensued, the error cannot be considered CUE. Id. see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). The above provisions are incorporated in a three-part test for determining whether CUE exists: (1) 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; (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, 6 Vet. App. at 245 (quoting Russell, 3 Vet. App. at 313-14); Wilson v. West, 11 Vet. App. 383, 386 (1998). The following are examples of situations that are not CUE: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist; (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Preliminarily, the Board finds that the Veteran’s motion satisfies the pleading requirements for seeking reversal or revision of the May 2003 Board decision on the basis of CUE. See 38 C.F.R. § 20.1404(b). Accordingly, the Board will address the motion on the merits. Under the applicable criteria in effect in May 2003 and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131;38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and a cardiovascular disorder such as hypertension becomes manifest to a degree of 10 percent within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under applicable rating criteria for hypertensive vascular disease (hypertension and isolated systolic hypertension), a 10 percent rating is warranted when the diastolic pressure is predominantly 100 or more, or the systolic pressure is predominantly 160 or more. A minimum 10 percent rating is also assigned for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. In denying service connection for hypertension in the May 2003 decision, the Board concluded there is no evidence showing that the Veteran’s diagnosed hypertension was is in any way related to service. The Board stated that there was no evidence of in-service incurrence, no evidence that subsequently developed hypertension was in any way due to service, and no evidence that current hypertension was manifested to a compensable degree within an applicable presumptive period subsequent to either period of service discharge. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board noted the Veteran’s assertions, the lay statements submitted on his behalf, and the statement by Dr. J.C., Assistant Director of Personnel Services, that he in fact did manifest elevated blood pressure "in the 1950s," but also that there was no evidence narrowing these lay statements to a more specific time period, such as prior to November 1952. Thus, the Board concluded the probative value of these statements was not significant, as they were made almost 50 years after the events in question, and that the service medical records were far more contemporaneous to the relevant time in question, and thus were inherently more reliable and probative than the unsubstantiated lay allegations. The Board also noted that, although the Veteran alternatively asserted that his pre-employment physical examination reports showed elevated blood pressure readings and hypertension, it had not been demonstrated that any of the statements made in support were made by persons having medical expertise or any medical training. The Board indicated that, although one statement was made by an author who signed her name with the title of "Dr.," the record does not show that this person has an M.D., and her title—Assistant Director of Personnel Services—tended to preponderate against such a finding, and that there is no indication, in the letter itself, that the author treated the veteran, or clinically reviewed his record. The Board found it noteworthy that another of the Veteran's lay witnesses, who submitted several statements on his behalf in another one of his claims not currently before the Board, repeatedly identified herself as an R.N., and as someone who had some training in identifying and assessing the Veteran's symptomatology picture, but that no such claims were made in the letter received by VA in February 2002 in connection with the current claim. The Board determined that it could not simply assume that a retired administrator of a public-school system, who had made no claims of medical training or expertise, possessed such medical qualifications merely because she signed her name prefaced with the title "Dr." Therefore, the Board found, as a matter of fact, that statement was made by a layperson. Finally, the Board determined that, even if there were medical reports showing elevated blood pressure "in the early 1950s," or some elevated blood pressure readings prior to November 1952, the Veteran and his lay witnesses were not competent to opine as to the reason the Veteran manifested those high blood pressure readings, or to provide diagnosis for them. As such, the Board concluded that the preponderance of the evidence was against the claim because it did not show that the veteran's hypertensive disorder was manifested during service, to a compensable degree within one year of his separation of service, or that current hypertension disorder is in any way related to service. The Board finds that the May 2003 decision correctly applied then-existing law to the evidence of record at the time, and the Veteran’s assertion that the letter from Dr. J.C. was sufficient evidence that the Veteran was diagnosed with hypertension represents mere disagreement with the weighing of the evidence and the factual determinations the Board reached, which the law provides cannot constitute CUE. See 38 C.F.R. § 20.1403(d). Here, the Board reasonably concluded that the statement by Dr. J.C. was made by a non-medical professional and that the unsubstantiated lay allegations that the Veteran had a history of elevated high blood pressure was outweighed by the service treatment records. As there was no evidence that the Veteran was diagnosed with hypertension during service, to a compensable degree within one year of his separation of service, or that current hypertension was in any way related to service, review of the evidence of record at the time of the May 2003 Board decision fails to compel the conclusion that it is absolutely clear that a different result should have occurred, i.e., that service connection should have been granted for hypertension. In so finding, the Board finds that the May 2003 Board decision was reasonably supported by the evidence then of record and was consistent with the laws and regulations then in effect. As such, the appellant failed to establish factual or legal error rising to the level of CUE in the May 2003 Board decision that denied service connection for hypertension. Further, although the Veteran contends that his service-connected PTSD, stomach condition, and back condition would have contributed to his developing hypertension post-service, such assertion or evidence pertaining to service connection on a secondary basis was not before the Board at the time of the May 2003 Board decision; hence, the Board cannot consider this argument in determining whether there was CUE in the May 2003 Board decision. See 38 C.F.R. § 20.1403(b). Further, to the extent that the movant is contending that further exploration of service connection for hypertension on a secondary basis was necessary or assertions of any failure to discharge the duty to assist, the breach of the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (citing Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that a CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not CUE). As noted by the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. As to the final matter of whether there would have been a manifest difference in the outcome of the decision in favor of the Veteran in establishing service connection, the Board has already addressed the Veteran’s contentions and found that no undebatable errors exist. Thus, the Veteran has not identified any legitimate error that, but for the error, would have resulted in a manifestly different change in the outcome of the decision on the claim. Accordingly, the motion to revise or reverse the Board’s May 2003 decision, on the basis of CUE, must be denied. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.