Citation Nr: 21027549 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-28 987 DATE: May 6, 2021 ORDER A September 2019 Board of Veterans' Appeals (Board) decision did not contain clear and unmistakable error (CUE) in denying entitlement to service connection for the cause of the Veteran's death. The Appellant's June 2020 motion for revision of the September 2017 Board decision is denied. FINDING OF FACT In denying entitlement to service connection for the cause of the Veteran's death, the September 2019 Board decision did not erroneously conclude that hypertension, a contributing cause of the Veteran's death, was not incurred in or otherwise related to service. CONCLUSION OF LAW The September 2019 Board decision that denied entitlement to service connection for the cause of the Veteran's death was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to April 1992 in the United States Air Force. The Veteran died in September 2017 and the Appellant is his surviving spouse. This matter is before the Board via a motion for revision received in June 2020 in which the Appellant, through her representative, contended that a September 2019 Board decision was clearly and unmistakably erroneous in denying entitlement to service connection for the cause of the Veteran's death. CUE in the September 2019 Board Decision A prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1411. To warrant a finding of CUE, there must have been 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 results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). The basis for this standard is that, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Additionally, a CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, in a motion alleging CUE in a prior Board decision, the claimant must specifically indicate what the error was and must provide persuasive reasons why the decision would have been manifestly different but for the error. See Fugo, 6 Vet. App. at 44. Statements that the Board improperly weighed and evaluated evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. In this case, the Appellant has contended that the September 2019 Board decision contained CUE in its conclusion that hypertension, an underlying cause of the Veteran's death, was not a service-connectable disability during the Veteran's lifetime. Specifically, in her June 2020 motion, the Appellant indicated that the Board erred in finding that there was no evidence of cardiovascular problems, including hypertension, during the Veteran's active duty service. The Appellant directly identified blood pressure readings and other in-service notations from May 1990, December 1990, July 1991, and January 1992 as evidence that the Veteran's hypertension arose while in service. The Appellant then noted that these in-service blood pressure notations qualified as hypertension pursuant to the American Academy of Cardiology. Lastly, the Appellant stated that, to the extent that these in-service blood pressure readings did not meet the criteria for hypertension as defined in 38 C.F.R. § 4.101, Diagnostic Code 7101, referencing this diagnostic code was erroneous as the criteria for rating an already-service-connected disability and establishing the existence of a disability for service connection are two separate standards. The Appellant referenced the Court of Appeals for Veterans Claims' (Court) decision of Vaughn v. Peake, No. 06-1859, 2008 U.S. App. Vet Claims LEXIS 673 (May 21, 2008) in support of her contention regarding the use of Diagnostic Code 7101. After reviewing the record, the Board disagrees with the Appellant and denies her motion. In support of this determination, the Board notes that, at the time of the September 2019 Board decision, service connection for cause of death could be awarded to a veteran's surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence had to have shown that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran was to be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. At the time of his passing in September 2017, the Veteran was not service-connected for any cardiovascular disability, including hypertension. However, the September 2019 Board could have granted the Appellant's claim if service-connection for a cardiovascular disability, including hypertension, could have been granted during the Veteran's lifetime. Specific to the disability of hypertension directly discussed in the Appellant's June 2020 motion, establishing service connection generally required the following three elements at the time of the September 2019 Board decision: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship between the current disability and the in-service event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Additionally, hypertension was classified as a "chronic disease" eligible for presumptive service connection under 38 C.F.R. § 3.309(a). The September 2019 Board thus could have considered presumptive service connection for hypertension as a "chronic disease" on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In reviewing the Veteran's claims file, the Board cannot conclude that the September 2019 decision contained an error, on which reasonable minds could not differ, in finding that the Veteran did not have hypertension in service, or that his hypertension had its clinical onset during service. Firstly, in her June 2020 motion, the Appellant referenced the American Academy of Cardiology's definition of hypertension and then referred to the following blood pressure readings in service as evidence that the Veteran's hypertension began in service, supporting a grant of service connection via the chronic presumption: 128/86 in May 1990; 122/84 in June 1991; and 128/81 in July 1991. However, for VA purposes, hypertension is defined as diastolic blood pressure predominantly at 90 millimeters or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). While the Appellant has contended that any references to Diagnostic Code 7101 in defining hypertension would have been inappropriate, her reliance upon the case of Vaughn v. Peake is not compelling. Specifically, Vaughn is a memorandum decision, designated for electronic publication only. Pursuant to U.S. Vet. App. R. 30(a), the Court designated Vaughn as non-precedential in nature. See No. 06-1859, 2008 U.S. App. Vet Claims LEXIS 673 (May 21, 2008). Thus, the Vaughn decision was not binding upon the Board in September 2019. Contrary to the Appellant's contention, in Gill v. Shinseki, the Court addressed the context upon which VA could refer to the definition of hypertension provided by Diagnostic Code 7101, Note (1). 26 Vet. App. 386 (2013). In Gill the Court held that Note (1) to Diagnostic Code 7101 applied to confirming the existence of hypertension in compensation claims. Id. at 390. Additionally, the Court remarked that it was not clear that Diagnostic Code 7101, Note (1)'s requirements for confirming a diagnosis of hypertension were applicable for assigning a disability rating for hypertension. Id. at 391. Accordingly, pursuant to Gill, it was not a legal erroron which no reasonable minds could differfor the September 2019 Board to conclude that the in-service blood pressure readings of May 1990, June 1991, and July 1991 did not establish that the Veteran first had hypertension for VA purposes in service. Accordingly, revision of the September 2019 decision on this basis is not warranted. Similarly, the June 2020 motion also referenced a July 1992 post-service blood pressure measurement of 130/76 as indication that the Veteran manifested hypertension within 1 year of separation from service, thus warranting service connection presumptively on a chronic basis. However, at the time of September 2019 Board decision, the evidence of record must have demonstrated that hypertension presented at a compensable degree within 1 year of separation of service. See 38 C.F.R. § 3.307(a)(3). In September 2019, 38 C.F.R. § 4.104, Diagnostic Code 7101 provided for a minimal compensable rating of 10 percent when: (1) diastolic pressure was predominantly 100 or more; (2) systolic pressure was predominantly 160 or more; or (3) or an individual with a history of diastolic pressure predominantly 100 or more required continuous medication for control. As this July 1992 blood pressure reading did not indicate that the Veteran's diastolic pressure was predominantly 100 or more, or that his systolic pressure was predominantly 160 or more, it was not supportive of a grant of service connection on a presumptive basis. Additionally, the July 1992 reading was taken during a VA examination wherein it was not noted that the Veteran took any medication for hypertension at that time. Accordingly, revision of the September 2019 decision on this basis is also not warranted. Lastly, in her June 2020 motion, the Appellant indicated that in-service optometry notes from December 1990 and January 1992 specifically listed hypertension as one of the Veteran's medical problems, thus satisfying the in-service incurrence criterion for service connection. The Board acknowledges that two in-service optometry notes from Brooks Air Force Base included notations of hypertension. However, the Board concludes that it was not clearly and unmistakably erroneous for the September 2019 Board to conclude that these notations did not establish that the Veteran's hypertension arose in service. Specifically, these notations occurred in sections of the optometry notes where the Veteran was asked to self-identify common conditions which were applicable to his medical history. The record did not demonstrate that the Veteran possessed the specialized medical training and knowledge to diagnose himself with hypertension such that these notations, if made by the Veteran himself, would constitute proper, competent diagnoses of hypertension in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, while these notations appear to be made in the handwriting of an attending medical professional, the December 1990 and January 1992 optometry notes do not contain blood pressure readings which formed the bases of these notations of hypertension. Accordingly, as there was no evidence indicating that these notations of hypertension were based upon blood pressure readings taken two or more times on at least three different daysand that the readings indicated a diastolic blood pressure predominantly at 90 millimeters or moreit was not clearly and unmistakably erroneous for the September 2019 Board to conclude that the December 1990 and January 1992 optometry notes did not support a finding of an in-service occurrence of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Thus, the Board concludes that revision on the basis of this final contention is also not warranted. In sum, the Board finds that the September 2019 Board decision did not commit an error, of which reasonable minds could not differ, in finding that the Veteran did not have a confirmed diagnosis of hypertension in service. As hypertensionan underlying cause of the Veteran's deathwas not a disability for which service connection was warranted, the Board in September 2019 also did not error in denying service connection for the cause of the Veteran's death. As such, the Board denies the Appellant's June 2020 motion for revision. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.