Citation Nr: 9935798 Decision Date: 12/23/99 Archive Date: 12/30/99 DOCKET NO. 96-13 767A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether a July 1985 rating decision, which determined that the appellant had not submitted new and material evidence regarding her claim for service connection for cause of the veteran's death, was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The veteran served on active duty from November 1943 to June 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1995 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In the rating decision on appeal, the RO determined that clear and unmistakable error had not occurred in the RO's determination in a July 1985 decision that new and material evidence had not been submitted to reopen the claim for service connection for cause of the veteran's death. In December 1997, the Board determined that the July 1985 rating decision, which determined that the appellant had not submitted new and material evidence regarding her claim for service connection for the cause of the veteran's death, was not clearly and unmistakably erroneous. The appellant appealed the decision to The United States Court of Appeals for Veterans Claims (formerly The United States Court of Veterans Appeals) (hereinafter "the Court"). The Secretary of Veterans Affairs (the Secretary) filed a motion to vacate and remand the December 1997 Board decision, which the Court granted on November 18, 1998. [citation redacted]. In the motion for remand, the Secretary found that the Board, in its December 1997 decision, did not provide adequate reasons or bases. FINDING OF FACT The July 1985 rating decision, which determined that the appellant had not submitted new and material evidence regarding her claim for service connection for the cause of the veteran's death, was supportable by the facts and law extant at the time of the decision. CONCLUSION OF LAW The July 1985 rating decision, which determined that the appellant had not submitted new and material evidence regarding her claim for service connection for the cause of the veteran's death, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran served on active duty from November 1943 to June 1945. He died in October 1980. The veteran's death certificate listed bilateral pulmonary embolism as the immediate cause of death. At the time of his death, he was service connected for anxiety reaction with depression, which was evaluated as 30 percent disabling. He had no other service-connected disabilities. The appellant filed a claim for Dependency and Indemnity Compensation or Death Pension in December 1980. The RO denied service connection for the cause of the veteran's death in a February 1981 rating decision. The veteran's widow appealed, and in a December 1983 decision, the Board denied service connection for the cause of the veteran's death. In April 1985, the appellant submitted a letter seeking to reopen the claim for service connection for the cause of the veteran's death. The appellant submitted a statement from a private medical physician, Dr. Victor Dominguez, dated March 1985. In a July 1985 rating decision, the RO determined that the appellant had not submitted new and material evidence regarding her claim for service connection for the cause of the veteran's death. The RO reasoned that the physician's statement that she submitted was merely speculative in nature, was not prepared by a physician who treated the veteran, and thus that it was not new and material evidence. She did not appeal that decision, and it became final. In a VA Form 21-4128, Statement in Support of Claim, received in September 1995, the appellant's representative sought to reopen the claim for service connection for the cause of the veteran's death. The representative argued that the July 1985 rating decision was clearly and unmistakably erroneous by not accepting Dr. Dominguez's medical certificate, which established that a connection existed between the medicine the veteran was taking for his service-connected disability and the factors that produced the thromboembolic episode, which was listed as the immediate cause of death. In a November 1995 rating decision, the RO determined that there was no clear and unmistakable error in the July 1985 decision. The RO based its decision on a November 1995 medical consultant opinion that indicated that the veteran's death was not related to his service-connected disability. I. Clear and Unmistakable Error Initially, the Board notes that the appellant has raised the claim of clear and unmistakable error with the requisite degree of specificity. See Eddy v. Brown, 9 Vet. App. 52, 57 (1996). Therefore, the Board has jurisdiction to consider the appellant's claim. Prior RO decisions that are final and binding are to be accepted as correct in the absence of "clear and unmistakable error." 38 C.F.R. §§ 3.104(b), 3.105(a) (1998). Otherwise prior decisions are final. 38 U.S.C.A. § 7105 (West 1991). The Court has defined clear and unmistakable error as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is an error that is "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). Further, "[a] determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior [RO decision]." Id. at 314. Additionally, the Court has stated: A claim of [clear and unmistakable error] is based upon an assertion that there was an incorrect application of the law or fact as it existed at the time of the disputed adjudication. [Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc).] Since an analysis of whether [clear and unmistakable error] has been committed may only proceed on the record, id., evidence that was not part of the record at the time of the prior determination may not form the basis of a finding that there was an act of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994) (emphasis in original). The Court has stated that, "It must always be remembered that clear and unmistakable error is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In order to establish a valid clear and unmistakable error claim, "the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of the prior decision." Hayre v. West, No. 98-7046 (Fed. Cir. Aug. 16, 1999), slip op. at 12 (citing Bustos v. West, No. 98-7069 (Fed. Cir. June 16, 1999)). The Board must point out that the actual language of 38 C.F.R. § 3.105(a), which addresses clear and unmistakable error, does not require that a grant; rather the regulation provides for a reversed or amended decision if clear and unmistakable error is found. The Board notes that the RO based its November 1995 rating decision (and its March 1996 statement of the case) on evidence that was not in the record at the time of the July 1985 rating decision, that is, the November 1995 rating board medical consultant opinion that had determined that the veteran's death was not related to his service-connected disability. Evidence not of record at the time of the rating decision being challenged cannot be considered in making a clear and unmistakable error determination. Caffrey, 6 Vet. App. at 383; Russell, 3 Vet. App. at 314. Thus, the Board will not consider that evidence as a basis for its determination of whether there was clear and unmistakable error. See id. The question that the Board is presented with is whether the RO made a clear and unmistakable error in applying the 1985 laws and regulations to the evidence in the record at the time of the July 1985 rating decision. Specifically, was there a factual or legal error in the 1985 decision which would have manifestly changed the outcome of the decision. II. The law at the time of the 1985 RO decision The Board notes that current laws and regulations differ from the laws and regulations in effect in 1985. First, the current statutory provision, 38 U.S.C.A. § 5108 (West 1991)(formerly 38 U.S.C.A. § 3008), which requires reopening of a claim upon the submission of new and material evidence, was not enacted until 1988 and did not become effective until September 1, 1989. See Pub. L. No. 101-687, § 103(a)(1) (Nov. 18, 1988). Similarly, the provision in the new-and-material-evidence regulation which defines the term of "new and material evidence," see 38 C.F.R. § 3.156(a), was not added until 1990. See 55 Fed. Reg. 20148 (May 15, 1990). The Court has held that a liberalizing regulation may not be applied to a time period prior to the regulation's effective date. See Karnas v. Derwinski , 1 Vet. App. 308, 312-13 (1991) (when a law or regulation changes after a claim has been filed but before the administrative or judicial appeal process has been concluded, VA is to apply the version most favorable to appellant); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997) (education benefits regulation not applicable prior to effective date). Thus, the Board may not apply 38 U.S.C.A. § 5108 (West 1991) or 38 C.F.R. § 3.156(a) (1998) in determining whether there was clear and unmistakable error in the 1985 decision that determined that there was no new and material evidence. Additionally, the Board notes that the continuous evolving case law on new and material evidence was not in existence at the time of the July 1985 rating decision and thus is not applicable to the appellant's 1985 petition to reopen. See Manio v. Derwinski, 1 Vet. App. 140 (1991); Colvin v. Derwinski, 1 Vet. App. 171 (1991); Smith v. Derwinski, 1 Vet. App. 178 (1991); Glynn v. Brown, 6 Vet. App. 523 (1994); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209, 217-218 (1999) (en banc); and Winters v. West, 12 Vet. App. 203, 207 (1999) (en banc). The regulation regarding what constituted new and material evidence, 38 C.F.R. § 3.156, which was in effect in 1985, merely contained provisions that (1) indicated when newly submitted evidence was to be considered to have been filed, and (2) addressed the issue of supplemental reports from the service department. Neither of these provisions are applicable in this case-the date of the filing of the allegedly new and material evidence is not at issue, and no supplemental report from a service department was submitted with the petition to reopen in 1985. Additionally, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Chapter 27, addressed reconsideration of claims based on additional evidence from various sources. See M21-1, Chapter 27 (March 12, 1977). This section did not change from 1977 to 1986. Under 27.02, it stated that all evidence would be carefully screened upon receipt to determine whether final disposition rests with authorization or the rating board. It further stated that if the material received was considered by authorization as clearly redundant, cumulative, or inconsequential, it would be filed and that duplicate records would be disposed. Under 27.04, it stated that affidavits and statements submitted by or on behalf of the veteran would be referred to the rating board for review and action. If the evidence submitted did not furnish a basis for reconsideration, it stated that the veteran and his representative would be fully informed wherein the evidence was deficient, the type of evidence required, and the right to appeal. See id. Under 27.07, it stated that when an application to reopen was based on the same condition for which a prior claim was disallowed and did not furnish new and material evidence, it would be considered a duplicate claim and the claimant would be so informed. See id. Additionally, there have been changes in regulations regarding evidence from private physicians. In 1985, VA regulations provided that a statement of a private physician generally had to be verified by an official examination before benefits could be granted, unless the statement from the private physician met the requirements of 38 C.F.R. § 3.326(d). 38 C.F.R. § 3.157(b)(2) (1985) (Emphasis added). Under 38 C.F.R. § 3.326(d) (1998), the requirements for a private physician's statement to be accepted without verification by an official examination were that the statement had to be related to (1) a pension claim of a veteran, widow, or widower, (2) a claim for aid and attendance allowance by a widow, widower, or parent, or (3) a claim by a child based on permanent incapability of self- support. However, because this case involves a claim for compensation, not pension, and does not involve a claim by a child based on permanent incapability of self-support, those exceptions are not applicable to this case. See id.; see also 40 Fed. Reg. 56434 (December 3, 1975) (noting that although there were changes to 38 C.F.R. § 3.157(b)(2), such regulation continued to require that evidence from a private physician for "service-connected disability compensation" be verified by VA examination). Finally, There was a statute and regulation in existence as to how the to process a petition to reopen. See 38 U.S.C. § 4004 and 38 C.F.R. § 19.194 (1984). Under section 4004(b) of the United States Code, it stated that when a claim had been disallowed by the Board, that it may not thereafter be reopened and allowed and that no claim based upon the same factual basis shall be considered. Such statute provided, however, that where subsequent to disallowance of a claim, new and material evidence in the form of official reports from the proper service department was secured, the Board may authorize the reopening of the claim and review of the former decision. See id. Under section 19.194 of the Code of Federal Regulations, it stated that when a claimant requested that a claim be reopened after an appellate decision and submitted evidence in support thereof, a determination as to whether such evidence was new and material must be made and, if it was, whether it provided a new factual basis for allowing the claim. See id. It is important to note that section 4004 contains the term reopened and allowed rather than just reopened or reopened or allowed. See 38 U.S.C. § 4004(b); see also Gardner v. Brown, 5 F.3d 1456, 1458 (Fed. Cir. 1993) ("starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter" (internal quotation marks omitted)), aff'd, 513 U.S. 115 (1994). III. The evidence of record at the time of the 1985 RO decision A. Evidence at the time of the 1983 Board decision At the time of the 1983 Board decision, the evidence of record was the appellant's application, private medical records, and VA medical records. A description of the evidence follows. In a November 1970 medical certificate, Dr. Jose R. Vigoreaux entered a diagnosis of depressive reaction, psychoneurotic type, chronic, moderate to severe. He stated that the appellant was mentally competent. The prognosis was guarded. Dr. Vigoreaux stated that the veteran had suffered an exacerbation of neurotic symptoms, which combined with cardio-vascular hypertensive disease, had rendered the veteran practically disabled for occupational endeavors. He stated that the veteran's disability was considered to be well over the 30 percent rating assigned by VA and that due to the veteran's age and uncertain prognosis, his disability would "most probably" become total and permanent in the future. In a September 1978 letter, Dr. Rodriguez Garcia stated that he had seen the veteran on several occasions and that the veteran's blood pressure was been 240/140-50 (systolic/diastolic) and that he believed that the veteran's emotional instability directly affected this high blood pressure and diabetes mellitus. In a September 1978 psychiatric evaluation, Dr. Guilermo Santiago entered a diagnosis of chronic brain syndrome. He stated that there was evidence of insidious deterioration of the veteran's mental functions. He stated that the veteran, because of his lability of affect, the depression, the confusion episodes, and the memory defects, had chronic brain syndrome associated with cerebral arteriosclerosis. Dr. Santiago opined that the veteran's emotional condition had aggravated the hypertensive cardiovascular disease and that the uncontrolled hypertensive cardiovascular disease had aggravated his emotional condition by hampering blood flow to the brain tissue, thus accelerating the development of the cerebral arteriosclerosis and establishing a vicious cycle. Dr. Santiago stated that the veteran present health situation was that of a severe impairment. The veteran had been hospitalized at a VA facility in August 1980. In the hospitalization summary report, the VA examiner noted that the veteran had been admitted because of bizarre and aggressive behavior. On admission, the appellant was noted to be presented with poor personal hygiene, was incoherent, and was irrelevant and mumbling few words. The VA examiner stated that the veteran was disoriented. The VA examiner that the veteran had a hypoglycemic state, which was corrected and improved his mental condition. The discharge diagnoses were organic brain syndrome, psychotic decompensation, hypoglycemia, hypertension, and diabetes mellitus. The veteran was hospitalized again September 1980 to October 1980 and died while at the VA facility. The VA hospitalization summary report listed the following clinical diagnoses: 1. Hypoglycemia; 2. Severe dehydration; 3. Urinary tract infection; 4. Arterial hypertension; 5. Diabetes mellitus, insulin dependent; and 6. Organic brain syndrome. In the report, the VA examiner stated that the veteran had stopped eating, talking, and walking five days prior to the admission. It was noted that the veteran had been admitted due to his hypoglycemia and his mental status. The VA examiner stated that the veteran was found dead in his bed on October [redacted] 1980, and that the most probable cause of death would be pulmonary embolism, but that myocardial arrhythmia should also be considered. The VA autopsy protocol, dated October 1980, revealed the following pathological diagnoses: (1) Bilateral pulmonary embolism; (2) Cardiomegaly with LVH, moderate coronary atheromatosis and right ventricular dilation; (3) Emphysema and pulmonary edema; (4) Acute passive congestion of liver; (5) Diabetes mellitus and hypertension, clinically; (6) Acute focal pyelonephritis, right kidney; (7) Nephrosclerosis; and (8) Adenocarcinoma of prostate, well differentiated, latent. The autopsy report's "Final Note" indicated that the veteran was a 67-year-old neuropsychiatric patient with diabetes mellitus and hypertension who had developed severe hypoglycemia. The VA examiner stated that the veteran had been "doing well" when he suddenly developed cardiorespiratory arrest and died. The VA examiner further stated that the main autopsy findings were bilateral pulmonary embolism, emphysema, cardiomegaly with moderate coronary atheromatosis and right ventricular dilation, acute focal pyelonephritis, nephrosclerosis, and latent adenocarcinoma of the prostate. The veteran's death certificate indicated that the veteran died in October 1980 with the immediate cause of death as bilateral pulmonary embolism. In a December 1992 private medical record, Dr. Jorge L. Suria Colon stated that he had reviewed the veteran's VA claims folder and interviewed the veteran's son and that it was his determination that the veteran's death was related to his service-connected condition. Specifically, he stated that the veteran had been suffering from a chronic depressive disorder and that this depressive disorder had prevailed from service until his death. Dr. Colon stated that due to the persistent nature of the depressive condition, the veteran suffered episodes of anorexia, which limited greatly his ingestion of food. He stated that based on his review of the clinical records, it was this that caused the veteran's hypoglycemia and the severe dehydration. He further opined that these two conditions provoked a coma and prolonged a stay in bed, which consequently had caused the bilateral pulmonary embolism, which was the direct cause of the veteran's death. Dr. Colon concluded the following: The chronic and persistent depressive disorder of this patient was a significant factor in the event narrated. For these reasons we consider that from a medical point of view it can be concluded reasonably that this depressive condition had a significant bearing to consider then his death as etiologically related to his depressive condition, which was service connected. In a February 1981 rating decision, the RO denied service connection for the cause of the veteran's death. The RO noted that the veteran had been denied service connection for hypertensive vascular disease and that service connection was not in effect for diabetes mellitus. The RO stated the VA medical records indicated that the most probable cause of the veteran's death was pulmonary embolism and that an autopsy report was pending. The RO stated that the evidence failed to show that the veteran's service-connected neurosis caused the veteran's death. Following the receipt of additional evidence, including the autopsy report, the RO determined that the claim remained denied. In the December 1983 decision, the Board determined that service connection for cause of the veteran's death was not warranted. The Board rejected Dr. Colon's determination that the veteran's service-connected nervous disorder was etiologically related to the veteran's death. The Board gave more probative value to the veteran's death certificate, which indicated that the sole cause of the veteran's death was bilateral pulmonary embolism, which had been based upon the autopsy of the veteran's body. That decision is final. B. Evidence submitted after the 1983 Board decision The evidence submitted after the Board's December 1983 decision follows. In a March 1985 letter from Dr. Victor Dominguez, he stated that he had found the following facts: 1. [The veteran] was a War Veteran with a service[-]connected 30% disability because of a nervous disorder classified as anxiety reaction with depression. 2. He also suffered from several other conditions, namely diabetes mellitus, recurrent urinary tract infections, arterial hypertension, and organic brain syndrome among other things. These conditions were not service connected but were treated at a VA hospital. 3. Patient had repeated hospitalizations and was chronically bedridden because of the above conditions and often because of the side effects of the medications received. 4. His last hospitalization was on September 29, 1980, [with] the admitting diagnoses "hypoglycemia and his mental status." Other diagnoses listed on the admission were severe dehydration, urinary tract infection, arterial hypertension, diabetes mellitus, insulin dependent, and organic brain syndrome. 5. He died on October [redacted] 1980, the cause of the death being listed as pulmonary embolism and R/O cardiac arrhythmia. Dr. Dominguez reported the medications that the veteran had taken and the side effects that had developed in the veteran. He then made the following conclusions: 1. Patient was discharged with a service[-]connected 30% disability because of anxiety reaction with depression. 2. Over a period of several years this condition progressed to a frank psychosis with 100% disability. 3. This change was brought about by the side effects of medications received both for his emotional as well as non service[-]connected conditions. 4. This treatment also produced the factors which favored the production of thromboembolic episode which was listed as the immediate cause of death. VA medical records, dated between December 1976 and September 1980, listed the medications prescribed for the veteran. In the July 1985 rating decision, the RO made the following determination: The Board of Veterans' Appeals denied service connection for the cause of the veteran's death in 1983. The physician's statement that was recently submitted is merely speculative in nature and was not prepared by a physician who treated the veteran. It is not new and material in nature and consequently no change is warranted in the prior denial of service connection. In the letter to the appellant informing her of the denial, the RO stated that it had received the medical certificate by Dr. Dominguez, but that such opinion did not constitute new and material evidence. The RO stated the following: To constitute new and material evidence, the material submitted must relate to the issue and have an effective influence or bearing on the decision in question. Evidence which is solely cumulative or repetitious in character will not serve as a basis for reconsideration of the previous decision. Inasmuch as the evidence received does not meet the requirements of new and material evidence given above, a valid basis for reopening your claim has not been established. If you desire to reopen your claim, please submit evidence conforming to the above requirements[,] and we will be glad to consider same. The appellant did not appeal that decision. IV. Current claim before the Board The question presented to the Board is whether the RO committed clear and unmistakable error in 1985 in determining that the appellant had not submitted new and material evidence regarding her claim for service connection for the veteran's death. The Board concludes that the RO did not commit clear and unmistakable error in denying reopening the claim for service connection for cause of the veteran's death and that the July 1985 decision was supportable, as the RO had based its determination on the statutory and regulatory provisions that were in existence at the time of the decision. More importantly, the appellant has not alleged a factual or legal error in the 1985 rating decision that would have manifestly changed the outcome of the 1985 decision. The Board's bases for this determination follow. At the time of the 1985 rating decision, there had already existed evidence that, if accepted as true, would have provided a relationship between the service-connected disability of anxiety reaction with depression and the cause of the veteran's death. In connection with the petition to reopen, the appellant submitted a private medical physician's opinion that the medication that the veteran was taking for both his service-connected disability and his nonservice- connected disabilities had caused the veteran's death. Thus, although Dr. Dominguez's theory is different in that he had determined that the veteran's medication from his service- connected disability had contributed to the veteran's death, Dr. Colon's determination was that the veteran's service- connected disability had caused anorexia and the inability to eat, which caused the veteran's death. Both medical opinions attributed the veteran's service-connected anxiety neurosis with depression to the cause of his death. The Board finds that Dr. Colon's determination did not provide a new factual basis. See 38 U.S.C. § 4004(b); 38 C.F.R. § 19.194; M21-1, 27.04. As noted above, at the time of the July 1985 rating decision, there was no regulatory definition of new and material evidence. In the Secretary's motion for remand, he alleged that the Board, in its December 1997 decision, had applied criteria other than that found in 38 C.F.R. § 3.156 in concluding that Dr. Dominguez's statement was "cumulative." It must be noted that section 3.156 was not the only provision that addressed evidence submitted following a prior denial or "new and material evidence." Additionally, in 1985, under 38 C.F.R. § 3.156, the only evidence received which could be considered to be "new and material" were that which was received prior to the end of the appeal period and a supplemental report from the service department. See 38 C.F.R. § 3.156 (1985). Under 27.04 of the M21-1, that provision clearly stated that if the additional evidence submitted did not provide a basis for reconsideration, then the veteran would be informed of such. Although that provision did not specifically state "new and material evidence," it clearly provided what was necessary for a claim to be reopened, which was a "basis for reconsideration." See id. In its July 1985 letter, the RO informed the appellant that she had not submitted a basis for reconsideration. The RO applied the correct law and regulations that existed at that time to the appellant's claim. See id. The RO also stated that the evidence it had received was cumulative and repetitious. The Board's use of that word was proper. Additionally, under section 4004(b), that statute provided that a claim that had been disallowed by the Board (which would apply here) would not be reopened and allowed based upon "the same factual basis" with which the prior claim had been disallowed. 38 U.S.C. § 4004(b); see also 38 C.F.R. § 19.194. The appellant's claim for cause of the veteran's death had already been disallowed based upon a private physician's statement that the veteran's service-connected anxiety neurosis with depression had caused the veteran's death. At the time of the July 1985 rating decision, the appellant had submitted an opinion which alleged the same factual basis-that the veteran's service-connected disability had caused the veteran's death. Although each private physician alleged a different mechanism as to the actual cause, both stated that the cause of the veteran's death was his service-connected disability. Dr. Dominguez's opinion did not provide a new factual basis. See id. See also M21-1, 27.07 (stating that application to reopen which was based on the same condition for which a prior claim was disallowed and did not furnish new and material evidence, it would be considered a duplicate claim and the claimant would be so informed). However, it must be noted that section 4004(b) required that a reopening would establish an allowance of benefits. See 38 U.S.C. § 4004(b). Thus, a claim at that time would not be reopened unless an allowance would follow. See id. (stating when a claim had been disallowed by the Board, that it may not thereafter be reopened and allowed and that no claim based upon the same factual basis would be considered). That statute further stated that a claim could be reopened upon the submission of "new and material evidence in the form of official reports from the proper service department." Id. Thus, the Board finds that the RO's July 1985 decision was not clearly and unmistakably erroneous in determining that a reopening of the claim was not warranted, as the evidence submitted was not official reports from the proper service department. See id. In its letter informing the appellant of the denial to reopen her claim, the RO clearly defined what constituted new and material evidence. Its statement that the evidence submitted was solely cumulative or repetitious in character and would not serve as a basis for reconsideration was consistent with what was provided in the M21-1, 38 U.S.C. § 4004(b) and 38 C.F.R. § 19.194. Thus, in correctly applying the laws and regulations extant at that time, the RO's July 1985 decision to deny reopening the appellant's claim could not constitute clear and unmistakable error. See Caffrey and Russell, both supra. The Board must address the Secretary's argument that the Board had failed to adequately explain its determination that regulations extant at the time of the July 1985 rating decision required verification by VA examination prior to reopening the claim. The Secretary argued that on its face, 38 C.F.R. § 3.157(b)(2) (1985) did not impose a requirement that a private physician's statement had to be verified by an official examination before a previously disallowed claim could be reopened. However, it must be noted that such section did not impose a duty that a private physician's statement must be verified every time one was submitted, even for a claim to reopen. See id. The Board does not find that the RO failed to interpret 38 C.F.R. § 3.157(b)(2) properly. That regulation clearly stated that verification by a VA examination was required if benefits were going to be granted. See id. It is clear based upon that regulation that in 1985 a private physician's statement was not given equal probative value to that of a VA examiner's. See id. At the time of the prior RO and Board decisions, there were VA medical records which established that the cause of the veteran's death was not due to his service-connected disability. The RO's determination not to reopen was a determination that benefits were not warranted as there had already been a private medical statement alleging that the veteran's service-connected disability had caused his death and thus the RO determined that a VA examination was not necessary, which is consistent in its applying the M21-1 provisions and 38 U.S.C. § 4004(b). As stated above, the RO applied the correct law and regulations to the appellant's petition to reopen, and the July 1985 decision is not clearly and unmistakably erroneous. See id. Stated differently, 38 C.F.R. § 3.157 constituted a rule of evidence. If unconfirmed, a private medical record was of no factual value and compensation could not be paid unless verified by an official examination. Id. at (b)(2). Under 38 U.S.C. § 4004, that statute provided that the claim may not be reopened and allowed. In view of the language of 38 C.F.R. § 3.157, a rational person could view it as an unconfirmed private medical record provided no new factual basis and thus the claim could not be reopened and allowed. Even if it was determined that a VA examination should have been ordered for verification of Dr. Dominguez's opinion, at worst, such would constitute a breach of the duty to assist, which would never constitute a valid clear and unmistakable error claim. Hayre, No. 98-7046, slip op. at 12 (noting that a recently enacted regulation, 38 C.F.R. § 20.1403 (1999), specifically provided that the breach of the duty to assist does not constitute clear and unmistakable error); Caffrey, 6 Vet. App. at 377. Regardless, as stated above, the appellant has not alleged a factual or legal error in the 1985 rating decision that would have manifestly changed the outcome of the 1985 decision. See id. Specifically, the appellant has not proved that reopening the claim would have manifestly changed the outcome of the 1985 rating decision. See id. In fact, it is not possible for the appellant to prove such, as the regulations in existence at that time would not allow a private physician's statement, standing alone, to warrant a grant of benefits. See 38 C.F.R. § 3.157(b)(2). The appellant cannot prove that a VA examiner's opinion, had one been requested, would have manifestly changed the outcome of the 1985 rating decision. See Hayre, No. 98-7046, slip op. at 12 (stating that the appellant there could not prove that missing service medical records would manifestly change the outcome of the 1972 rating decision). In other words, it is impossible for the appellant to have predicted what a VA examiner would have determined based upon Dr. Dominguez's medical determination. See Hayre and Bustos, both supra. On that note, the Board must note that the determination to reopen a claim is only a preliminary determination and is not outcome determinative. In reviewing the more recent case law by the Court, it has established a new analysis for determining whether to reopen a previously denied claim. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc)). There, the Court established a three-part test in determining whether the evidence is new and material. First, VA must determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Id. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Thus, it is clear that just reopening a claim is not an outcome determination. If the claim is reopened, it can be (1) not well grounded and denied, (2) well grounded and denied, or (3) well grounded and granted. The Board is not citing to this case law as evidence of what the appellant would have needed to submit to establish new and material evidence. Rather, the Board is merely pointing out that a determination of whether the appellant has submitted new and material evidence is not outcome determinative. This further substantiates the Board's determination that clear and unmistakable error cannot be established in this case for merely failing to reopen the claim for service connection for cause of the veteran's death. See Hayre and Bustos, both supra (in order to establish a valid clear and unmistakable error claim, claimant must show that an outcome-determinative error occurred). Here, in order to establish clear and unmistakable error claim as to the RO's failure to reopen her claim, the appellant would need to establish that the claim, as reopened, would have manifestly changed the outcome of the 1985 decision. See id. Such proof by the appellant is not possible based upon (1) the facts that existed in 1985, (2) the argument presented by both the appellant and the Secretary, and (3) the laws and regulations which were extant at the time of the 1985 rating decision. As discussed above, even if the RO construed Dr. Dominguez's statement as new and material evidence to reopen the claim, there is no proof that a VA examination, if ordered, would manifestly change the outcome of the 1985 decision. See Hayre and Bustos, both supra. Regardless, in 1985, a claim was not reopened unless a "basis for reconsideration" was shown, "a new factual basis" was shown, or if the evidence submitted was service records from the service department. See M21-1, 27.04, 38 U.S.C. § 4004(b); 38 C.F.R. §§ 3.156, 19.124. The Board must point out that it finds that there is no conflict in the statute, the regulations, and the M21-1 provisions that existed in 1985 as to petitions to reopen a previously denied compensation claim. The Board must note that in a recently issued Memorandum Decision, the Court had a similar fact scenario as the Board has in this case. See V. v. West, No. 97-974 (Oct. 1, 1999). The Board is not citing to this Memorandum Decision as precedent; rather, it is adopting the theory as part of its own. The part of the decision which the Board finds persuasive is as follows: In this case, at the time of the RO's July 1948 letter to the veteran, the record clearly shows that the veteran had submitted new and material evidence in the form of a transcript of the proceedings before the May 1945 Army Retiring Board. It is also clear that the RO received and reviewed the transcript, and determined that the evidence would not warrant a change in the outcome of the previous denial of his claim. The veteran did not timely appeal the RO's 1948 determination, and the decision became final. As a result, the veteran's only argument can be that [clear and unmistakable error (CUE)] existed in that RO decision. 38 C.F.R. § 3.105(a) ("Previous determinations which are final and binding . . . will be accepted as correct in the absence of [CUE]."). Instead, the veteran attempts to combine two theories by claiming that, because he had submitted new and material evidence in 1948, and such evidence did not lead to a reopening of his claim, there was CUE in the RO's decision. However, the effect of the veteran's alternate theory, in this appeal, is to seek a reweighing of the evidence, which is not a basis for CUE. Russell, 3 Vet. App. at 313. While it is true that the introduction of the transcript during the course of the present appeal would meet the requirements of section 3.156(c), and might result in a different outcome, that is not what is before the Court. Instead, contrary to what is most common before the Court (evidence that is new, but not material), the veteran is attempting to submit evidence that may be material, but is not "new." See 38 C.F.R. § 3.156; Evans v. Brown, 9 Vet. App. 273, 283 (1996) ("New evidence" is that which was not in the record at the time of the final disallowance of the claim, and it is not "merely cumulative" of other evidence in the record). Accordingly, the Court holds that the Board's determination that CUE was not present in the prior RO adjudications was not "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law." 38 U.S.C. § 7261(a)(3)(A). Id., slip op. at 4-5 (citations to record on appeal omitted). Here, the appellant is also seeking a reweighing of the evidence, which is not a basis for clear and unmistakable error. Russell, 3 Vet. App. at 313. As stated above, the RO in denying reopening the claim in July 1985 applied the correct statutory and regulatory provisions to the correct and relevant facts, see id., and that the appellant has not proved that reopening the claim would have manifestly changed the outcome of the 1985 rating decision, see Hayre and Bustos, both supra. V. Additional considerations The Board wants to address separately some of the arguments that the Secretary made in his motion for remand. As addressed above, the Secretary filed a motion to remand because he had determined that the Board's December 1997 decision did not provide adequate reasons and bases. He cited to Myore v. Brown, 9 Vet. App. 498 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); and Beyrle v. Brown, 9 Vet. App. 377 (1996) for his proposition of the Board's requirement to provided adequate reasons and bases. In citing to Beyrle, the Secretary noted that such case provided that, "In order to provide adequate reasons and bases, 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 the rejection of all material evidence favorable to the veteran." The Board has reviewed that case, and although the Court was addressing a claim for clear and unmistakable error, such wording in the decision the decision was merely dicta. In a claim for clear and unmistakable error, the Board does not analyze the credibility nor the probative value of the evidence that was in existence at the time of the decision. A claim for clear and unmistakable error is based upon the Board's review of whether a prior rating decision applied the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer, 1 Vet. App. at 372. A claim for clear and unmistakable error does not entail weighing evidence. It is clear that the Court, in laying out such standard, was simply laying out its case law as to the Board's requirement to provide adequate reasons and bases, and the Secretary's citation to such case is misguided in implying that that was how the Board had failed to provide adequate reasons and bases in the December 1997 decision. As stated above, in a claim for clear and unmistakable error, such analysis (assessing credibility and weighing the probative value of the evidence) is not applicable in a claim for clear and unmistakable error. Additionally, the issues presented in Myore and Meyer were not that of clear and unmistakable error, see Myore and Meyer, both supra, and do not substantiate the type of reasons and bases that are required by the Board when addressing a claim for clear and unmistakable error. As to Hayre, in light of the Federal Circuit finding's finding that a prior claim remained open, the Board must address the Hayre theory, although unrelated to the claim for clear and unmistakable error. In Hayre, the Federal Circuit found that a prior claim had remained open because of VA's failure of the duty to assist in attempting to obtain service medical records more than one time. See Hayre, supra. In this case, the RO, obtained a VA medical opinion, in which the VA examiner reviewed Dr. Dominguez's opinion that the veteran's medication for his service-connected attributed to his death. The VA examiner disagreed with Dr. Dominguez's medical opinion and determined that the veteran's service- connected anxiety reaction with depression did not contribute to the veteran's death; rather, that nonservice-connected disabilities contributed to the veteran's death. This medical opinion would have complied with 38 C.F.R. § 3.157(b)(2), and thus any Hayre concerns were satisfied. See Hayre, supra. Additionally, the Board notes that the Board's consideration and application of the M21-1 does not present a Bernard issue, as the July 1985 notification to the appellant of the rating decision addressed the submission of evidence which was cumulative and that such would not provide a basis for reconsideration. See Bernard v Brown, 4 Vet. App. 384 (1993); see also M21-1, Chapter 27 (1977). ORDER The July 1985 rating decision, which determined that the appellant had not submitted new and material evidence regarding her claim for service connection for the cause of the veteran's death, was supportable and not clearly and unmistakably erroneous. H. N. SCHWARTZ Member, Board of Veterans' Appeals