Citation Nr: 21013016 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-04 396 DATE: March 8, 2021 ORDER As the October 21, 2020 Board decision’s grant of service connection for prostate cancer was clearly and unmistakably erroneous (CUE), that decision is reversed to deny service connection for prostate cancer. FINDINGS OF FACT 1. The October 21, 2020 Board decision contained a legal and factual error in granting service connection for prostate cancer, and but for that error, the outcome of that decision would have been manifestly different and service connection for prostate cancer would have been denied. 2. The Veteran did not have prostate cancer at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW 1. The October 21, 2020 Board decision granting service connection for prostate cancer was clearly and unmistakably erroneous, and it is reversed to deny service connection for prostate cancer. 38 U.S.C. § 5109A, 7111; 38 C.F.R. § 20.1400-1411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from March 1965 to March 1968. This matter is currently before the Board on the Board’s own Motion for revision or reversal on the grounds of CUE in the October 21, 2020 Board decision insofar as that decision granted service connection for prostate cancer. In February 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. Before going on the record, the Veteran stated that he wished to withdraw the claims of service connection for erectile dysfunction and the claim regarding prostate cancer from appellate status. In a July 2019 decision, the Board, inter alia, dismissed the claims for entitlement to service connection for erectile dysfunction and prostate cancer, per the Veteran’s February 2019 request. The Veteran appealed this decision to the Court and in May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding portions of the Board’s July 2019 decision. Specifically, the Court Order vacated that part of the July 2019 Board decision that, inter alia, dismissed the claim of entitlement to service connection for prostate cancer. In an October 2020 decision, the Board, inter alia, granted service connection for prostate cancer. Whether an October 21, 2020 Board decision granting service connection for prostate cancer should be revised or reversed on the basis of CUE A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 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 clear and unmistakable error, or 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. 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. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The present motion asserts that the Veteran does not, in fact, have prostate cancer, and therefore, it was CUE to grant service connection for prostate cancer absent a current disability. The motion is therefore properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. Generally, either 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. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 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 which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (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 that 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 v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (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 the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 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. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The pertinent laws and regulations at the time of the October 2020 decision are the same as they are now. To establish service connection, there must be a current disability, an in-service injury or disease, and a link between the two. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§1110, 1131; 38C.F.R. §3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R. §3.303(d). For veterans who are presumed to have been exposed to certain herbicide agents, including Agent Orange; or, for those veterans who are not entitled to the presumption of exposure, but who have otherwise established exposure to herbicide agents on a direct, or facts found basis, certain diseases are presumed to be due to that exposure. Prostate cancer is one such disease. See 38C.F.R. §§3.307 (a)(6); 3.309(e) The evidence considered at the time of the October 2020 Board decision regarding service connection for prostate cancer included a finding that the Veteran had been exposed to herbicide agents while in service. Thus, the dispositive issue in the appeal was whether the Veteran had a diagnosis of prostate cancer such that service connection could be established on a presumptive basis. In the October 2020 decision, the Board found that the Veteran had a diagnosis of prostate cancer. As such, the Board determined that service connection for prostate cancer based on in-service herbicide exposure was warranted pursuant to 38 C.F.R. §§ 3.307(a)(6); 3.309(e). As noted below, the finding of a current disability of prostate cancer was clearly and unmistakably erroneous. The medical evidence of record at the time of the October 2020 Board decision does not, in fact, reflect that the Veteran has, or has ever had, prostate cancer. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records (STRs) do not reflect a diagnosis, treatment, or symptoms of prostate cancer. A March 2006 screening for prostate cancer was negative and there is no evidence of record showing an objective diagnosis of prostate cancer per a prostate biopsy. Furthermore, there is no evidence of record showing surgery and/or treatment for prostate cancer such as radiation or chemotherapy, and the Veteran has never asserted such. The erroneous finding of a current diagnosis of prostate cancer was made based on a September 2012 correspondence from a private physician, Dr. G.P., who reported that the Veteran was a patient in his practice, and had been for some time. Dr. G.P. further stated: He has asked me to write a letter regarding his claim for compensation. I have been asked to indicate my thoughts concerning the possibility of his service connected problems for a number of different situations. I will list these with the recommendation as you have asked: …. 1. PTSD: Highly probable 2. Prostate Cancer: Possible 3. Scar formation: Possible 4. Peripheral Neuropathy: Possible 5. Bilateral leg condition: Probable 6. Diabetic retinopathy: less likely 7. Diabetes: Less likely 8. Peripheral Neuropathy with bilateral right and upper lower extremity conditions: Possible I have reviewed the patient’s record from the VA medical center concerning this. I do not have his military records concerning exposures, etc. However, the patient does indicate that he had very close and persistent contact with Agent Orange. I am not an expert on Agent Orange but am aware that a number of these conditions he has can be related. This document was the sole basis for finding that the Veteran had a current diagnosis of prostate cancer. However, neither Dr. G.P. nor any other medical provider has diagnosed the Veteran with prostate cancer. Dr. G.P. did not include any screening test or biopsy used to diagnose prostate cancer, and he did not affirm or confirm a diagnosis of prostate cancer. As noted from the correspondence, G.P. was addressing the Veteran’s concerns, which apparently include prostate cancer as a possible situation. Radiology imaging from 2014, and other outpatient treatment records reflect that the Veteran has prostatic hypertrophy, but not prostate cancer. As the record reflects that the Veteran does not have prostate cancer, reliance on a single document listing “prostate cancer” as one of the Veteran’s concerns, alone, without any other evidence to suggest that the Veteran actually had prostate cancer, was an error of fact, resulting in an erroneous finding of current disability. Therefore, the remaining issue is whether the error in finding that he did have prostate cancer, in the October 2020 Board decision, was outcome determinative. Bouton, 23 Vet. App. at 71. In this case, it was. But for the error of fact, service connection would not have been warranted. The lack of a diagnosis, treatment, and symptoms of prostate cancer in the medical evidence of record reviewed at the time of the October 2020 Board decision is undebatable evidence that he did not have a diagnosis of prostate cancer that could have been presumed due to his conceded herbicide agent exposure. 38 C.F.R. § 3.6 (2010). The finding of a current disability of prostate cancer is undebatably erroneous; and, but for that error, service connection would have been denied. Absent a current disability, there can be no valid claim. The requirement of a current diagnosis is a fundamental element needed to grant service connection. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Most notable, is the Veteran’s request to withdraw the issue of service connection for prostate cancer at the time of his personal hearing in February 2019. When considered in light of the lack of any medical evidence showing a diagnosis of, or treatment for, prostate cancer, it is reasonable to infer that the Veteran attempted to withdraw that issue because he knew that his claim for service connection for prostate cancer was not valid absent a current disability. For the foregoing reasons, the Board’s October 21, 2020 grant of service connection for prostate cancer was clearly and unmistakably erroneous, as the Board made a factual error and a legal error in finding that the criteria for establishing service connection for prostate cancer were met. That decision is therefore reversed to deny service connection for prostate cancer. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.