Veteranclaims’s Blog

January 18, 2018

Single Judge Application; CUE; rebut the service connection presumption; three types of rebuttal evidence allowed by Congress; affirmative evidence to the contrary; presumption soundness;

Excerpt from decision below:

“Accordingly, [the appellant’s] tobacco use as described in the Rating Decision
cannot constitute “affirmative evidence to the contrary” of the presumption. [The
appellant’s] claim could not be denied on this basis. R. at 467-68. The appellant concluded:
The only way in which the RO could have properly denied [the appellant’s] claim
was to rebut the service connection presumption [he] was entitled to receive. In
order to rebut the presumption, the Rating Decision needed to apply one of three
types of rebuttal evidence allowed by Congress. Yet, the Rating Decision contained no analysis of any “affirmative evidence” to the contrary, no analysis of an “intercurrent disease or injury,” and no mention of ”willful misconduct.”[ 1 ]
Importantly, the Rating Decision could not deny the claim based upon any of the
three types of rebuttal evidence articulated in the statute because the [VA]
exam[ination] simply did not contain the necessary conclusions for the analysis. R. at 470-71.

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“Here, the Board stated:
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As noted, the [appellant] has argued that the 2003 rating decision’s reliance on the
VA pulmonologist’s opinion that tobacco use “likely contributed” to [his] lung
cancer cannot constitute affirmative evidence to the contrary because it does not rule out the possibility that other factors, such as herbicide exposure, did contribute to the lung cancer. Upon inspection, however, this is not an argument that the RO failed to apply the correct law, but is a disagreement with how the VA
pulmonologist’s opinion was interpreted. Phrased differently, the [appellant] is not arguing that the law was misapplied, or that the correct facts were not before the adjudicator; instead, the [appellant] is arguing that the conclusion the RO reached is not supported by the VA pulmonologist’s opinion; it is argued that the VA opinion does not meet the definition of affirmative evidence to the contrary.
Because this argument is based on a disagreement with how the RO evaluated the
facts, it does not amount to CUE. R. at 7. Despite acknowledging that the appellant had raised a challenge to the legal sufficiency of the April 2003 VA examination report, the Board recharacterized that argument as a disagreement with the weight of the evidence, which it determined does not raise a cognizable allegation of CUE. This was error.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2811
ALBERT C. WILEY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Albert C. Wiley, through counsel appeals a July 17,
2017, Board of Veterans’ Appeals (Board) decision that dismissed his motion to revise an April 2003 VA regional office decision (RO) on the basis of clear and unmistakable error (CUE). Record (R.) at 1-11. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this
decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from April 1953 to April 1966,
including service in Vietnam. R. at 1011-13.
In 2001, the appellant was diagnosed with squamous cell carcinoma of the lung and sought VA disability benefits for that condition based on exposure to Agent Orange in service. R. at 996-1005. In March 2003, VA requested a VA medical examination to determine the etiology of the appellant’s lung cancer. R. at 955. The examination request reflects that VA advised the examiner
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that the appellant was seeking benefits based on exposure to herbicides. Id. The examination request further provided: “[P]rivate medical evidence shows vet[eran] is at risk for lung cancer due to long history of tobacco use and asbestos exposure. Opine as to most likely etiology for the veteran’s lung cancer, specifically discussing the known risk factors of asbestos exposure and long tobacco use history.” Id.
In April 2003, the appellant underwent a VA medical examination. Under the heading “Exposure History,” the examiner noted that the appellant had quit smoking tobacco in 1970 and that he had smoked less than one pack of cigarettes a week. R. at 952. The examiner also noted that the appellant had “possible” exposure to asbestos during his postservice work in construction.Id. The examiner recorded that the appellant denied significant exposure to herbicides, although the appellant added that he “may have” been exposed during his service in Vietnam. Id. The
examiner opined: “He has no defin[i]te history of herbicide or asbestos exposure, though exposure to both cannot be ruled out. He has significant exposure to tobac[c]o, which most likely contributed to his lung cancer.” R. at 953.
In April 2003, the RO denied the appellant’s claim based on the April 2003 VA examination report. The RO acknowledged that the appellant was presumed to have been exposed to herbicides during his service in Vietnam and that lung cancer is a condition that is presumed to have been caused by exposure to herbicides. R. at 949. Nevertheless, the RO stated: “The VA Pulmonologist reviewed your records and stated that your lung cancer was most likely contributed to by your tobacco use. The examiner did not link the lung cancer to any in-service herbicide exposure.” Id.
Accordingly, the RO denied “service connection on a presumptive basis . . . since the cause of the lung cancer is shown to be due to . . . tobacco use.” R. at 950. The appellant did not appeal that decision, and it became final.
In July 2015, through current counsel, the appellant filed a motion to revise the April 2003 RO decision based on CUE. R. at 460-71. In his motion, the appellant alleged that “the RO misapplied the law relating the presumption of exposure to Agent Orange for Vietnam Veterans and the presumption of service connection when lung cancer develops.” R. at 465. He further contended that, although the presumption of service connection was not absolute and could be rebutted by “clear evidence to the contrary,” among other evidence, “no true rebuttal evidence of any type existed in this case.” Id. In that regard, the appellant argued:
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[I]t must be noted that the Rating Decision states tobacco use “likely contributed”
to [the appellant’s] lung cancer. This conclusion necessarily means tobacco use
was not the exclusive cause of the lung cancer. In other words, other contributing
causes—like Agent Orange exposure—exist. In fact, the [VA] examiner stated
herbicide exposure [“]could not be ruled out.”
Accordingly, [the appellant’s] tobacco use as described in the Rating Decision
cannot constitute “affirmative evidence to the contrary” of the presumption. [The appellant’s] claim could not be denied on this basis. R. at 467-68. The appellant concluded:
The only way in which the RO could have properly denied [the appellant’s] claim was to rebut the service connection presumption [he] was entitled to receive. In order to rebut the presumption, the Rating Decision needed to apply one of three types of rebuttal evidence allowed by Congress. Yet, the Rating Decision contained no analysis of any “affirmative evidence” to the contrary, no analysis of an “intercurrent disease or injury,” and no mention of ”willful misconduct.”[ 1 ]
Importantly, the Rating Decision could not deny the claim based upon any of the three types of rebuttal evidence articulated in the statute because the [VA]
exam[ination] simply did not contain the necessary conclusions for the analysis. R. at 470-71.
In November 2015, the RO determined that the April 2003 rating decision did not contain CUE. R. at 435-39. The RO explained:
The expression “affirmative evidence to the contrary” will not be taken to require a
conclusive showing, but such showing as would, in sound medical reasoning and
in the consideration of all evidence of record, support a conclusion that the disease
was not incurred in service.
The rating board cannot ignore competent medical evidence/opinions; neither the
rating board, nor the [appellant], nor the [appellant’s] power of attorney may
substitute our own medical “expertise” to rebut expert medical evidence. The
evidence in this case clearly shows that [the appellant’s] lung cancer was attributed
to other causes, rather than to exposure to herbicides/Agent Orange in Vietnam.
R. at 437. The appellant filed a Notice of Disagreement with that decision, R. at 417-20, and
ultimately appealed to the Board, R. at 107-40.
1 The appellant here refers to 38 C.F.R. § 3.307(d), which concerns the ways in which the presumption of
service connection may be rebutted. In this case, we are concerned only with “affirmative evidence to the contrary,”
which the regulation explains “will not be taken to require a conclusive showing, but such showing as would, in sound
medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not
incurred in service.” 38 C.F.R. § 3.307(d) (2017).
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In July 2017, the Board issued the decision on appeal, dismissing the appellant’s motion for revision of the April 2003 rating decision on the basis of CUE. R. at 1-11. The Board concluded that, although the appellant had framed his argument as a challenge to the RO’s application of the law—specifically the presumption of service connection based on presumed exposure to herbicides—the substance of his argument amounted to no more than a disagreement with the way the RO weighed the evidence, particularly the April 2003 VA examination report. R. at 7-8. The Board therefore concluded that the appellant had not sufficiently pleaded an
allegation of CUE and dismissed the motion without prejudice. R. at 8-9. This appeal followed.

II. ANALYSIS
On appeal, the appellant contends that the Board erroneously determined that his motion for revision was based on a disagreement with the way the RO weighed the evidence and therefore improperly dismissed that motion. Appellant’s Brief (Br.) at 5-7. He also argues that the April 2003 VA medical opinion was insufficient to rebut the presumption of service connection based on exposure to herbicides. Id. at 9-11. The Secretary disputes these arguments and asserts that the Board correctly dismissed the appellant’s motion. Secretary’s Br. at 4-13.
A request to revise a final RO or Board decision based on CUE is a collateral attack on that decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000). CUE is established when the following conditions are met: First, either (1) the correct facts in the record were not before the adjudicator or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Damrel v. Brown, 6 Vet.App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.”
Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); see Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011). Finally, 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. Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999)(expressly adopting “manifestly change[d] the outcome” language in Russell); see also King v. Shinseki, 26 Vet.App. 433, 442 (2014) (“Whether it is reasonable to conclude that the outcome
would have been different is not the standard that must be met for a motion alleging [CUE] to succeed. The governing law requires that the error be ‘undebatable’ and that the commission of the
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alleged error must have ‘manifestly changed the outcome’ of the decision.” (citing Russell, 3 Vet.App. at 313)).
“CUE is a very specific and rare 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.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993) (emphasis omitted). “[I]f it is not absolutely clear that a different result would have ensued,” based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final Board or RO decision is not clear and unmistakable. Id. at
44. The Court’s review of the Board’s determination on the existence of CUE is limited to whether that conclusion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or unsupported by adequate reasons or bases. 38 U.S.C. § 7261(a)(3); see Eddy v. Brown, 9 Vet.App. 52, 57 (1996). That standard of review, however, ‘”contemplates de novo review of questions of law,”‘ including whether an applicable law or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent v. Principi, 389 F.3d 1380,
1384 (Fed. Cir. 2004)).
A veteran, like the appellant, who served in Vietnam and is therefore presumed to have been exposed to herbicide agents, 38 C.F.R. § 3.307(a)(6)(iii) (2017), and who suffers from certain diseases, such as lung cancer, is entitled to a rebuttable presumption of service connection, 38 C.F.R. § 3.309(e) (2017). See 38 U.S.C. § 1116. Congress has provided:
Where there is affirmative evidence to the contrary, or evidence to establish that an
intercurrent injury or disease which is a recognized cause of any of the diseases or
disabilities within the purview of section 1112, 1116, 1117, or 1118 of this title, has
been suffered between the date of separation from service and the onset of any such diseases or disabilities, or the disability is due to the veteran’s own willful
misconduct, service-connection pursuant to section 1112, 1116, or 1118 of this title,
or payments of compensation pursuant to section 1117 of this title, will not be in
order.
38 U.S.C. § 1113.

As noted in footnote 1 above, VA regulation provides that “[t]he expression
‘affirmative evidence to the contrary’ will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service.” 38 C.F.R. § 3.307(d).
Here, the Board stated:
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As noted, the [appellant] has argued that the 2003 rating decision’s reliance on the VA pulmonologist’s opinion that tobacco use “likely contributed” to [his] lung cancer cannot constitute affirmative evidence to the contrary because it does not rule out the possibility that other factors, such as herbicide exposure, did contribute to the lung cancer. Upon inspection, however, this is not an argument that the RO failed to apply the correct law, but is a disagreement with how the VA pulmonologist’s opinion was interpreted. Phrased differently, the [appellant] is not arguing that the law was misapplied, or that the correct facts were not before the adjudicator; instead, the [appellant] is arguing that the conclusion the RO reached is not supported by the VA pulmonologist’s opinion; it is argued that the VA opinion does not meet the definition of affirmative evidence to the contrary.
Because this argument is based on a disagreement with how the RO evaluated the facts, it does not amount to CUE. R. at 7. Despite acknowledging that the appellant had raised a challenge to the legal sufficiency of the April 2003 VA examination report, the Board recharacterized that argument as a disagreement with the weight of the evidence, which it determined does not raise a cognizable allegation of CUE. This was error. In Kent, which concerned the presumption of sound condition, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that “a question as to the legal sufficiency of the evidence is a question of law.” 389 F.3d at 1383. Later, in Waltzer v. Nicholson, which also concerned the presumption of sound condition, the Federal Circuit
explained: “A challenge to the legal sufficiency of the evidence tests whether the evidence in question, as a matter of law, is capable of meeting the applicable legal standard.” 447 F.3d 1378, 1380 (Fed. Cir. 2006) (internal quotation marks omitted). This is precisely what the appellant argued in his July 2015 motion for revision based on CUE. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991) (“[W]hether th[e] facts are sufficient to satisfy the statutory requirement that clear and unmistakable evidence be shown is a legal determination subject to de novo review.”); see
also Kent, 389 F.3d at 1384. Because the Board erred in concluding that the appellant’s CUE allegation amounted to a mere disagreement with the way the RO weighed the evidence, the Court concludes that the Board erred in dismissing the appellant’s CUE motion.
In light of this discussion, the Court will vacate the Board decision and remand this matter for the Board to address the appellant’s motion for revision of the April 2003 rating decision based on CUE in the first instance. On remand, the appellant is free to submit additional argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing
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entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s July 17, 2017, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 17, 2018
Copies to:
Angela K. Drake, Esq.
VA General Counsel (027)

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