Citation Nr: 21070043 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-39 278 DATE: November 22, 2021 REMANDED Entitlement to revision of a September 2009 rating decision on the basis of clear and unmistakable error (CUE) to reflect the award of service connection for arteriosclerosis is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for hypertension is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for bilateral ureteral obstruction is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for hypoperfusion of left kidney lower pole is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for pilonidal cyst is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for abdominal aortic aneurism is remanded. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for retroperitoneal fibrosis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to December 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Appellate History In June 2009, the Veteran filed a claim of entitlement to service connection for diabetes mellitus, as a result of exposure to Agent Orange. A September 2009 rating decision granted entitlement to service connection for diabetes mellitus. In April 2013, the Veteran filed a claim requesting revision of the September 2009 rating decision based on CUE. The Veteran argued that he should have been provided a total (100 percent) rating for hypertension, arteriosclerosis, status post endovascular repair of renal artery stents, bilateral ureteral obstruction secondary to retroperitoneal fibrosis, hypoperfusion of the left kidney and lower pole, pilonidal cyst, abdominal aortic aneurysm, and other issues not currently on appeal. The March 2014 rating decision on appeal found CUE in the September 2009 rating decision pertaining to the Veteran's claim for erectile dysfunction secondary to diabetes mellitus; however, the rating decision denied further revision of the September 2009 decision was warranted. The Veteran appealed the March 2014 rating decision. His brief included that the RO erred when it denied numerous claims which, though not expressly claimed, he asserted were inextricably intertwined with his diabetes service connection claim. A November 2018 Board decision, in pertinent part, found that the September 2009 rating decision implicitly denied service connection for retroperitoneal fibrosis, abdominal aortic aneurysm, arteriosclerosis, bilateral ureteral obstruction, left eye scar, hypertension, hypoperfusion, and pilonidal cyst, and that the September 2009 rating decision did not contain CUE. The Veteran appealed this Board decision to the Court of Appeals for Veterans Claims (CAVC). In December 2019, CAVC issued a memorandum decision vacating part of the November 2018 Board decision. CAVC affirmed the Board's decision finding no CUE in the parts of the September 2009 rating decision which denied entitlement to service connection for gastroesophageal reflux disease (GERD), left eye scar, and a low back disability, and CAVC affirmed the Board's decision regarding the effective date for the grant of erectile dysfunction. The portion of the Board decision that was vacated related to the Board's finding of no CUE in the September 2009 rating decision implicit denial of service connection for retroperitoneal fibrosis, abdominal aortic aneurysm, arteriosclerosis, bilateral ureteral obstruction, hypertension, hypoperfusion, and pilonidal cyst. Regarding the Board's finding of implicit denial, CAVC found that the Board failed to provide an adequate statement of reasons and bases as the Board did not review the four factors for implicit denial outlined by CAVC in Cogburn. Cogburn v. Shinseki, 24 Vet. App. 205 (2010). In May 2020, the Board, after reviewing the Cogburn factors, determined that the RO had implicitly denied the Veteran's "claims" for entitlement to service connection for retroperitoneal fibrosis, abdominal aortic aneurysm, arteriosclerosis, bilateral ureteral obstruction, hypertension, hypoperfusion, and pilonidal cyst. The Board again determined that the correct facts, as known at the time, were before VA adjudicators in September 2009, and the statutory and regulatory provisions extant at the time were correctly applied, such that revision for CUE was not warranted. The Veteran again appealed the Board decision to CAVC. A June 2021 CAVC memorandum decision found that there was no error with the 2020 Board decision's application of the factors discussed in Cogburn, or the Board's finding that the Veteran's "claims" (current claims on appeal) were implicitly denied in the September 2009 rating decision. CAVC found that the Board analyzed the Veteran's claimed conditions as secondary to his diabetes mellitus, but did not analyze his other allegations that his conditions were entitled to service connection based on exposure to herbicides. CAVC noted that the Veteran's brief included assertions that some of his conditions warrant presumptive service connection based on herbicide exposure, and that some of his conditions may be secondarily related to his herbicide-related conditions. CAVC found that the 2020 Board decision must be vacated because the Board failed to provide an adequate statement of reasons and bases by failing to address any of the Veteran's assertions regarding service connection based on herbicide exposure or explain why it did not need to address these assertions or remand the matters back to the RO for adjudication in the first instance. The 2020 Board decision was vacated and remanded for readjudication. 1. Entitlement to revision of a September 2009 rating decision on the basis of clear and unmistakable error (CUE) to reflect the award of service connection for arteriosclerosis is remanded. 2. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for hypertension is remanded. 3. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for bilateral ureteral obstruction is remanded. 4. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for hypoperfusion of left kidney lower pole is remanded. 5. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for pilonidal cyst is remanded. 6. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for abdominal aortic aneurism is remanded. 7. Entitlement to revision of a September 2009 rating decision on the basis of CUE to reflect the award of service connection for retroperitoneal fibrosis is remanded. In December 2013, the Veteran submitted a claim of CUE in the September 2009 rating decision. The argument centered on the September 2009 rating decision denying all secondary-to-diabetes conditions, "in contradiction with" 38 C.F.R. § 3.310 (related to secondary service connection). The claim cited a medical dictionary with a list of "serious complications" of diabetes, and citation to VA treatment records from 2004, 2005, 2006, 2008, March 2009, and 2012 (after the September 2009 rating decision that is the subject of the CUE claim). The claim also argued that the September 2009 rating decision contained CUE because "based on August 30, 2010 expansion of herbicide disease[s] listed [in 38 C.F.R. § 3.309(e), the RO was required] to re-evaluate [the] Veteran's diagnosed 'arteriosclerosis' or complain[ts] [of] 'chest pain'." The Veteran noted that the August 2010 change added ischemic heart disease, and that his claims should have been re-evaluated and granted with an effective date in 2008 (one year prior to the date of his 2009 claim). See December 17, 2013 Statement in Support of Claim, (page 13 as added to the electronic record, page 7 as numbered by the Veteran). The March 2014 rating decision on appeal addressed the Veteran's theory of CUE related to the RO failing to grant secondary service connection for his disabilities as related to his service-connected diabetes mellitus. The RO noted that the Veteran's claims were not further addressed in the September 2009 rating decision because the Veteran did not "explicitly claim service connection" for these conditions. In an October 2015 Brief, the Veteran again argued that he was wrongfully denied service connection for his disabilities as his claimed disabilities were "inextricably intertwined" and "aggravated" by his service-connected diabetes mellitus. In addition to arguing that the Veteran's claims should have been granted as secondary to service-connected diabetes mellitus, the Veteran again asserted that the RO was required to "re-evaluate" his claims following the August 30, 2010 expansion of the presumptive herbicide diseases listed in 3.309(e). Each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Here, the Veteran's theory of CUE related to whether his disabilities warranted service connection based on herbicide exposure has not been explicitly addressed by the RO in the March 2014 rating decision. The Board notes that the Appellee Brief from the 2021 CAVC appeal addressed the Veteran's arguments that the September 2009 rating decision was contrary to 38 C.F.R. § 3.309 (governing presumption of herbicide exposure). The Brief noted that it was "unclear [] how consideration of these cases and regulations would establish that the RO's implicit denial was CUE...[because] there is no mechanism to grant service connection for those conditions absent medical evidence." The Brief argued that the Veteran's arguments were "either assertions that VA failed to properly discharge the duty to assist, or a disagreement with how the RO weighted the evidence in the September 2009 decision, neither of which can constitute CUE." See 38 C.F.R. § 3.105, Caffrey v. Brown, 6 Vet. App. 377, 382 (holding that failure to fulfill duty to assist cannot constitute [CUE]); Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002) (holding that a breach of a duty to assist cannot constitute CUE and that "grave procedural error" does not render a decision of VA non-final). As noted above, the June 2021 CAVC memorandum decision found that there was no error with the 2020 Board decision's analysis of the implicit denials of the Veteran's claims, and found that the Board analyzed whether there was CUE in the September 2009 rating decision related to the Veteran's secondary service-connection argument/theory. However, CAVC found that the 2020 Board decision failed to address the Veteran's assertions regarding service connection based on herbicide exposure. The CAVC memorandum decision found that the Board failed to either explain why it did not need to address these assertions, or remand the matter back to the RO for adjudication in the first instance. As the theory has not been addressed by the RO in the first instance, the Board finds that remand is required. The RO must address the contention by the Veteran that there is CUE in the September 2009 rating decision due to the RO's failure to 1) address whether the Veteran's disabilities were the result of exposure to herbicide agents, and 2) re-evaluate the Veteran's claims after the August 2010 expansion of the herbicide diseases listed in 38 C.F.R. § 3.309(e). The matters are REMANDED for the following action: Issue a rating decision adjudicating the Veteran's claims of CUE in the September 2009 rating decision that implicitly denied service connection for retroperitoneal fibrosis, abdominal aortic aneurysm, arteriosclerosis, bilateral ureteral obstruction, hypertension, hypoperfusion, and pilonidal cyst. The rating decision must address the theories raised by the Veteran that the RO committed CUE in its September 2009 rating decision by (1) failing to address whether the Veteran's disabilities were the result of exposure to herbicide agents, and (2) failing to re-evaluate the Veteran's claims after the August 2010 expansion of the herbicide diseases listed in 38 C.F.R. § 3.309(e). If the decision is adverse, the Veteran must be informed of his appellate rights with respect to the decision; the Veteran must submit a proper notice of disagreement to appeal a rating decision. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.