Citation Nr: 21072616 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-46 006 DATE: December 3, 2021 ORDER The claim to revise an April 2007 rating decision that denied entitlement to service connection for cancer of the right tonsil (previously claimed as throat cancer) on the basis of clear and unmistakable error (CUE) is denied. Entitlement to service connection for loss of salivary production due to treatment of cancer of the right tonsil is denied. Entitlement to service connection for right shoulder limited range of motion due to treatment of cancer of the right tonsil is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for throat cancer in an April 2007 decision that became final because the Veteran did not perfect his appeal or submit new and material evidence within 1 year of the decision. 2. The April 2007 rating decision was adequately supported by the evidence then of record, considered the correct facts as they then existed, correctly applied statutory or regulatory provisions extant at that time, and did not contain an undebatable or egregious error of fact or law that was outcome determinative. 3. The Veteran's loss of salivary production is not secondary to any service-connected disability and is not otherwise related to an in-service injury or disease. 4. The Veteran's right shoulder limited range of motion is not secondary to any service-connected disability, and is not otherwise related to an in-service injury or disease CONCLUSIONS OF LAW 1. The April 2007 rating decision which denied service connection for entitlement to service connection for throat cancer was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.105 (a), 4.40, 4.45, 4.59, 4.71a. 2. The criteria for service connection for loss of salivary production due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for right shoulder limited range of motion due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to May 1986. He testified before the undersigned at an August 2021 hearing. A transcript of the hearing is associated with the record. Service Connection 1. Whether the April 2007 rating decision that denied service connection for cancer of the right tonsil (previously claimed as throat cancer) contained clear and unmistakable error (CUE). A previous AOJ determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The claim was denied in an April 2007 rating decision. The Veteran was notified of that decision and his appellate rights. He did not initiate an appeal and there was no new and material evidence received within the appeal period. Thus, the April 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213 F.3d 1372 (2000). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. The contested rating decision was issued in April 2007. Service connection for throat cancer was denied because it was not incurred in or caused by service. In the rating decision, the AOJ considered the Veteran's service treatment records, VA treatment records and a March 2007 VA medical opinion. The Veteran's argument is essentially that the AOJ committed CUE by relying on the March 2007 examination, which was inadequate because the examiner did not actually provide an opinion on etiology of the Veteran's throat cancer. The Veteran also alleges that the AOJ committed CUE by not considering whether the throat cancer was entitled to etiology based on his conceded in-service herbicide exposure. With respect to the failure to consider herbicide exposure, the Board finds that VA is not required to offer such an alternative theory. The Veteran's initial claim for service connection did not raise the issue of herbicide exposure and his diagnosis is not one the VA lists as presumptive when dealing with herbicide. The Board finds no indication that the AOJ was made aware of the Veteran's contention at the time of the 2007 rating decision. Rather, the AOJ determined that the evidence in favor of a finding of a nexus between the claimed disorders and active service was not at least in equipoise with the evidence against such a finding. With respect to the medical opinion, the Board notes that while the Veteran's argument may be factually correct, the failure to provide an adequate examination and opinion is a failure in the VA's duty to assist. However, failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). Failure to obtain an etiology opinion in this case created an incomplete rather than an incorrect record. Id. at 384. Therefore, the Board finds that there is no basis to revise the March 2007 rating decision based on CUE. The appeal must be denied. 2. Service connection for loss of salivary production due to treatment of cancer of the right tonsil. 3. Service connection for right shoulder limited range of motion, strength, and fatigability due to treatment of cancer of the right tonsil. The Veteran's contention is that these conditions are secondary to his throat cancer and the surgery that was required to treat this condition. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. As discussed above, there was no CUE in the April 2007 rating decision that denied service connection for throat cancer; and service connection for throat cancer is not in effect. Service connection secondary for to throat cancer is not available in this instance because the throat cancer, the predicate needed to consider secondary service connection, is not service-connected. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(a). M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.