On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for the Veteran's cause of death.
2. Entitlement to 38 U.S.C. § 1318 Dependency and Indemnity Compensation (DIC), to include entitlement to DIC on the basis of clear and unmistakable error (CUE).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The late Veteran served on active duty from July 1951 to January 1954. The appellant in the current appeal is his surviving widow.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the appellant's claims of entitlement to service connection for the Veteran's cause of death and DIC benefits.
In early April 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development, including to obtain an additional medical opinion. The RO/AMC was also directed to consider the appellant's hitherto unadjudicated CUE claim in conjunction with her DIC claim, in which she raised a claim of CUE with respect to an October 1999 rating decision that awarded the late Veteran a 60 percent evaluation for his low back disability and a total rating for individual unemployability (TDIU), effective October 15, 1996. With regard to these actions, the Board observes that the requested medical opinion was obtained in mid-April 2012, and the CUE aspect of the appellant's DIC claim was duly adjudicated in an October 2012 supplemental statement of the case. The Board thusly finds that the RO/AMC's actions are in substantial compliance with its April 2012 remand instructions and that no further remand for corrective action is necessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The October 2012 supplemental statement of the case confirmed and continued the denial of service connection for the Veteran's cause of death and DIC benefits (including entitlement to DIC on the basis of CUE). The case was thereafter returned to the Board in November 2012 and the appellant now continues her appeal.
1. Correspondence from the Veteran was received by VA on September 12, 1996, in which he expressly requested to reopen his claim for a rating increase for his service-connected low back disability. Subsequent correspondence from the Veteran was received by VA on October 15, 1996, reiterating his claim for a rating increase.
2. An October 1999 rating decision implemented a September 1999 Board decision granting the Veteran an increased evaluation to 60 percent for degenerative disc disease (DDD) of the lumbosacral spine, lumbosacral strain, and degenerative joint disease (DJD) of the L3-L5 vertebrae, and a TDIU; these increased ratings became effective October 15, 1996.
3. The Veteran was notified of his appellate rights in connection with the October 1999 rating decision, but the decision was not appealed and became final.
4. The October 1999 rating decision, in considering the evidence and law as it then existed at the time, committed clear and unmistakable error in arbitrarily assigning an effective date of October 15, 1996 for a permanent and total rating for the Veteran's service connected disabilities instead of September 12, 1996, which was the actual date VA received his claim for a rating increase; this error is undebatable and the outcome of the claim would have manifestly changed had it not been made.
5. The Veteran died on September [redacted], 2006 at age 75; his death certificate lists cardiac arrest as his immediate cause of death, due to, or as a consequence of acute myocardial infarctions due to, or as a consequence of coronary artery disease.
6. The Veteran would have been in receipt of compensation at the 100 percent rate due to his service-connected disability for a period of 10 or more years prior to his death, but for clear and unmistakable error in the October 1999 rating decision.
7. At the time of the Veteran's death, service connection was in effect for a chronic low back disability that was diagnostically rated as DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae; these disabilities did not cause or substantially or materially contribute to the Veteran's death.
8. The causes of the Veteran's death were not manifested during active service or for many years thereafter, nor were they otherwise causally related to active service or to a service-connected disability.
CONCLUSIONS OF LAW
1. The October 1999 rating decision, in assigning an effective date of October 15, 1996, for a permanent and total rating for the Veteran's service connected disabilities, committed clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012).
2. The Veteran's service-connected disabilities did not substantially or materially contribute to his death, and his death was not caused by a disability incurred in or aggravated by active service, presumed to have been or by any disability proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309, 3.310, 3.312 (2012).
3. The criteria for entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist.
The first matter to address is whether the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is applicable to that part of the appellant's DIC claim that asserts entitlement on the basis of CUE with respect to a prior final rating decision dated October 1999, which awarded the Veteran a TDIU effective October 15, 1996. In Livesay v. Principi, 15 Vet. App, 165 (2001), the United States Court of Appeals for Veterans Claims (Court) noted that although the VCAA of 2000 was potentially applicable to all pending claims, there were instances where the VCAA of 2000 had no application as a matter of law. Id. at 178. The Court noted that the VCAA added a new section 5100 of Title 38 of the United States Code and that a 'claimant,' as defined by the new 38 U.S.C. § 5100, included a person applying for or seeking benefits under part II or III of Title 38, but could not encompass a person seeking revision of a final decision based on CUE pursuant to 38 U.S.C. §§ 5109A and 7111. Id. at 179. Thus, as the Court held that the VCAA of 2000 did not apply to claims of CUE, no further discussion of the VCAA is warranted in this decision with respect to the CUE component of the appellant's DIC claim. Otherwise, the Board finds that October 1999 rating decision for which CUE is asserted by the appellant and all claims-related documentation and evidence that was associated with the late Veteran's claims file at the time of the October 1999 rating decision is available for consideration by the Board. The outcome of the CUE question is also favorable to the appellant.
With respect to the appellant's claims for the Veteran's cause of death, the Board notes that in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his/her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his/her possession that pertains to the claim. Additionally, in the subsequent case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court held that adequate notice must also include informing the claimant of (4) degree of disability; and (5) effective date. Furthermore, in the context of a claim for service connection for cause of death benefits, statutory notice must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected (predicated on the contentions or theory of service connection advanced by the veteran's survivor). 38 U.S.C.A. § 5103(a). See Hupp v. Nicholson, 21 Vet. App. 342 (2007).
The appellant's claim for VA compensation for service connection for the Veteran's cause of death was received by VA in November 2006. In response, she was furnished with a letter issued in August 2007, prior to the RO's adjudication of the claim in October 2007, which did not fully comply with the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006), and Hupp v. Nicholson, 21 Vet. App. 342 (2007). Thusly, the August 2007 notice letter is defective in its content. No further notice was sent to the appellant to correct these defects. While acknowledging these defects, the Board finds that they do not result in any prejudice to the appellant. With respect to the Dingess/Hartman deficiencies, as this decision is denying the appellant's cause of death claim on appeal, the issues of ratings and effective dates assigned for awards of VA compensation are rendered moot. With regard to the Hupp deficiencies, the record reflects that the appellant's contentions and the proactive actions that she undertook to develop her cause of death claim demonstrate that she had actual knowledge of the disabilities for which a Veteran was service connected at the time of his death (i.e., a chronic low back disability); and that she also knew that she needed to submit evidence that would establish a nexus between the Veteran's established cause of death (as listed in his death certificate) and his period of military service, either as directly or presumptively linked to such service or as secondarily related to the Veteran's service-connected chronic low back disability. Thus, in view of the foregoing discussion, the Board concludes that VA's duty to notify in this case is satisfied.
In addition, the Board finds that the duty to assist the appellant has been satisfied. All relevant records that are obtainable have been associated with the Veteran's claims file and were reviewed by both the RO and the Board in connection with the claim. The late Veteran's service personnel and treatment records and his relevant post-service treatment records for the period from 1954 - 1998, and also his official death certificate listing those conditions which caused or contributed to his death in September 2006, have been obtained and associated with the evidence.
Additionally, VA has provided the Veteran's claims file containing the aforementioned medical evidence to VA examiners for review, after which nexus opinions addressing the likelihood that the Veteran's death was service-related were presented in reports dated in June 2009 and April 2012. These opinions are predicated on a thorough review of the Veteran's pertinent clinical history and are supported by a detailed rationale. As such, the Board deems them to be adequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
In view of the foregoing discussion, the Board concludes that the appellant has had adequate opportunity to present evidence and argument in support of her claim for service connection for the Veteran's cause of death and that there has been sufficient development of the record to adjudicate the claim on the merits. A remand for further evidentiary development is therefore unnecessary.
With respect to the appellant's claim for DIC pursuant to the provisions of 38 U.S.C.A. § 1318, as will be further discussed in the analysis below, the Board has determined that based on a finding of CUE with regard to a pertinent prior final rating decision, there is legal entitlement to the claimed benefit and the appeal is being granted in full. Thusly, no further discussion of the VCAA notice requirements and VA's duty to assist is necessary with respect to this specific matter.
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
(a.) Factual background and analysis: Entitlement to service connection for the Veteran's cause of death.
The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of the Veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a).
Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).
In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The Veteran's claims file shows that he died on September [redacted], 2006 at age 75. His death certificate shows that his immediate cause of death was listed as cardiac arrest due to, or as a consequence of acute myocardial infarctions due to, or as a consequence of coronary artery disease. Other significant medical conditions identified in the death certificate as contributing to the Veteran's death but not resulting in the underlying cause were past history of myocardial infarctions, a below-the-knee amputation performed shortly prior to death on September 13, 2006, and Alzheimer's disease.
At the time of the Veteran's death, service connection was in effect for a DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae.
The Veteran's service medical records do not show treatment or onset of cardiovascular disease or hypertension during active duty. His heart and vascular system were normal on entrance examination in July 1951 and separation examination in January 1954. Chest X-ray study was also normal on separation examination in January 1954. Post-service VA medical examination in June 1954 also shows normal findings on chest X-ray and cardiovascular evaluation. Thereafter, clinical findings indicative of onset of cardiovascular disease are not objectively demonstrated until a March 1974 VA hospitalization report, in which the Veteran was treated for complaints of chest pain who reported onset began six months earlier. A diagnosis of essential hypertension with a history of hypertension of six months duration was also presented.
To the extent that the appellant claims entitlement to service connection for cardiovascular disease that ultimately caused the Veteran's death, the Board finds no clinical basis to allow service connection on a direct basis in view of the foregoing evidence showing no diagnoses of hypertension, cardiomegaly, or heart disease in service or manifest to a compensable degree within one year following the Veteran's discharge from active duty. There is also no objective medical or lay evidence of continuity of symptomatology.
The Board has considered the appellant's contention that service connection for the Veteran's cause of death should be allowed on the theory that his fatal cardiovascular disease was secondary to, or aggravated by his service-connected lumbosacral spine disability. In this regard, she cites pharmacological literature that states that users of certain non-steroidal anti-inflammatory drugs (NSAIDs) to treat orthopedic symptoms "may have a higher risk of having a heart attack or stroke. . ." She also raises the theory that the Veteran's inability to engage in physical exercise due to his service-connected low back disability also contributed to a worsening of his cardiovascular disease that materially contributed to his death. Citation was made to a report from the Mayo Clinic about the cardiovascular health benefits of regular exercise.
To address the appellant's contentions, the Veteran's claims file and relevant clinical history was provided to a VA physician in June 2009 and April 2012 for his review. As relevant, the examiner opined in June 2009 that it was less likely than not (i.e., less than a 50/50 probability) the Veteran's death due to cardiac arrest was related to the medications used by him to treat his back disability symptoms, as the specific NSAIDs prescribed to him are not of the class of NSAIDs that are definitively shown to cause or exacerbate heart disease.
The VA examiner also expressed his opinion in June 2009 that it was less likely than not that the Veteran's limited mobility due to his service-connected low back disability caused or contributed to his cardiovascular disease and fatal cardiac arrest. The medical rationale was that lack of physical mobility is not a recognized cardiac risk factor when considering the risk of sudden cardiac death. Furthermore, the opining physician stated that none of the recognized clinical guidelines for risk scoring/assessment of cardiac events list limited physical mobility as a risk factor.
In April 2012, the VA physician re-reviewed the Veteran's claims file and expressed his opinion that the late Veteran's death from cardiac arrest was less likely than not caused by, incurred in, or aggravated by his period of active military service; that the late Veteran's death from cardiac arrest was less likely than not caused or aggravated by his service connected low back disability; and that it was less likely than not that the late Veteran's service connected low back disability caused, hastened, or substantially and materially contributed to his death from cardiac arrest. The examiner's clinical discussion re-cited the rationale presented in the June 2006 opinion. He also presented the following additional discussion:
[My] detailed review of the C file/treatment chart. . . confounds the notion that [the Veteran's] lack of mobility was due to [his service-connected low] back condition. He had a well documented [chronic obstructive pulmonary disease], peripheral vascular disease and [Alzheimer's related] dementia. So, even if his lack of mobility is considered an etiology for his [coronary artery disease] (which I do not) it is documented that these [non-service-connected] conditions were the major factors in his limitation [of mobility] rather than his [service-connected] back condition.
There is no evidence that [the Veteran] had [coronary artery disease] while in the service based on the C file documents.
The Board finds that the VA physician's opinions of June 2009 and April 2012 are highly probative evidence weighing against the appellant's claim for service connection for the Veteran's cause of death. The opinions have considered the theories presented in her contentions and have objectively determined that there is no clinical basis to etiologically associate the Veteran's service-connected lumbosacral spine disability with his death due to cardiac arrest due to cardiovascular disease. The 2009 and 2012 opinions also conclusively determined that there is no nexus between the Veteran's military service and the cardiovascular disease that ultimately led to his death.
To the extent that the appellant asserts that her own personal knowledge of medicine and the Veteran's medical condition and history are sufficient in and of themselves to provide a basis to associate the Veteran's military service and/or his service-connected disabilities with his death, the Board notes that there is nothing in the record that indicates that she is a medical professional. Moreover, the determination of the cause of the Veteran's death, including the relative contributions of his myriad of health problems, is clearly a matter well outside a layperson's expertise to address. Because the matter at hand requires medical expertise, and as the appellant lacks the requisite medical training to have the expertise to make medical diagnoses or provide opinions on matters regarding medical causation and etiology, her statements in this regard are therefore not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the Board is cognizant of the late Veteran's honorable service in the defense of his country and is sympathetic to his widow's situation, her personal belief in the existence of a relationship between the cause of the Veteran's death and his military service or service connected disability, no matter how sincere, is not probative of a nexus to service if unsupported by objective medical evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999).
In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the appellant's claim of service connection for the Veteran's cause of death. The late Veteran's service-connected disabilities have been clinically determined to have not been causal or substantially or materially contributing factors to his death, and his primary cause of death due to cardiac arrest, due to myocardial infarction, due to coronary artery disease is unrelated to his military service. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
(b.) Factual background and analysis: Entitlement to 38 U.S.C. § 1318 DIC, to include entitlement to DIC on the basis of CUE.
A surviving spouse may establish entitlement to dependency and indemnity compensation where it is shown that a veteran's death was not the result of willful misconduct, and at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability and meets the following criteria: (1) that the veteran was continuously rated totally disabled for the 10 years immediately preceding death; (2) that the veteran was rated totally disabled upon separation from service, was continuously so rated, and died at least five years after separation from service; or, (3) that the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b) (West 2002). The statute was implemented by VA at 38 C.F.R. § 3.22.
Thereafter, in Wingo v. West, 11 Vet. App. 307 (1998), the Court interpreted 38 C.F.R. § 3.22(a) as permitting a DIC award in a case where the veteran had not established entitlement to VA compensation for a service-connected total disability and had never filed a claim for such benefits which could have resulted in entitlement to compensation for the required period. The Court concluded that the language of 38 C.F.R. § 3.22(a) would permit a DIC award where it is determined that the veteran "hypothetically" would have been entitled to a total disability rating for the required period if he or she had applied for compensation during his or her lifetime.
Effective January 21, 2000, VA promulgated a final regulation pertaining to DIC benefits for survivors of certain veterans rated totally disabled at time of death. See 65 Fed. Reg. 3,388-3,392 (2000); see 38 C.F.R. § 3.22. The final regulation reflected VA's conclusion that 38 U.S.C.A. § 1318(b) authorizes payment of DIC only in cases where the veteran had, during his or her lifetime, established a right to receive total service-connected disability compensation from VA for the period required by that statute, or would have established such a right if not for clear and unmistakable error by VA.
In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the Federal Circuit held that, for the purpose of determining whether a survivor is entitled to "enhanced"" DIC benefits under a different statute, 38 U.S.C.A. § 1311(a)(2) (West 2002) (veteran required to have been rated totally disabled for a continuous period of eight years prior to death), the implementing regulation, 38 C.F.R. § 20.1106, does permit "hypothetical entitlement."
However, in National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) (NOVA I), the Federal Circuit addressed a challenge to the validity of 38 C.F.R. § 3.22, and found a conflict between that regulation and 38 C.F.R. § 20.1106. The Federal Circuit concluded that the revised 38 C.F.R. § 3.22 was inconsistent with 38 C.F.R. § 20.1106, which interprets a virtually identical veterans benefit statute, 38 C.F.R. § 1311(a)(2), and that VA failed to explain its rationale for interpreting these virtually identical statutes (38 U.S.C.A. § 1311 and 38 U.S.C.A. § 1318) in conflicting ways. The Federal Circuit remanded the case, and directed VA to stay all proceedings involving claims for DIC benefits under 38 U.S.C.A. § 1318 where the outcome is dependent on 38 C.F.R. § 3.22, pending the conclusion of expedited VA rulemaking.
Accordingly, on April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit available under 38 U.S.C. § 1311(a)(2). See 67 Fed. Reg. 16,309-16,317 (April 5, 2002), effective May 6, 2002. In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II), regarding a challenge to the validity of 38 C.F.R. § 3.22 as amended January 21, 2000, the Federal Circuit held, in part, that 38 C.F.R. § 3.22 as amended was not invalid insofar as it precluded "hypothetical entitlement" as an additional basis for establishing eligibility under 38 U.S.C.A. § 1318. The Federal Circuit held that VA could properly construe the "entitled to receive" language of sections 1311(a)(2) and 1318 in the same way, and could properly construe the language of the two statutory sections to bar the filing of new claims, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening, i.e., "hypothetical entitlement" claims.
In Rodriguez v. Peake, 511 F.3d 1147 (Fed. Circ. 2008), the Federal Circuit held that the application of amended section 3.22 to the appellee's claim did not create an unlawful retroactive effect because it did not retrospectively diminish any of her rights to benefits. Thus, the Federal Circuit held that 38 C.F.R. § 3.22, as amended in 2000, did not have an unlawful retroactive effect and may be applied to claims for DIC benefits filed by survivors before the amendment took effect.
Based on the foregoing, VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under either 38 U.S.C.A. § 1311(a)(2) or 38 U.S.C.A. § 1318. Therefore, the only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C.A. § 1318 are (1) to meet the statutory duration requirements for a total disability rating at the time of death; or (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision.
As relevant, at the time of the Veteran's death on September [redacted], 2006, service connection was in effect for DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae, which was rated 60 percent disabling as a single disabling entity. He was also in receipt of a TDIU. The effective date of both the 60 percent disability rating and the TDIU award was October 15, 1996. Thusly, the Veteran did not have a total rating that was in continuous effect for 10 or more years at the time of his death (September [redacted], 2006).
In essence, the appellant seeks an earlier effective date for the late Veteran's TDIU award in order to meet the criteria for entitlement to § 1318 DIC. However, the October 15, 1996 effective date for the TDIU was assigned by an October 1999 rating decision, which was not timely appealed and became final. The Court held in Rudd v. Nicholson, 20 Vet. App. 296 (2006), that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned that to allow such claims would vitiate the rule of finality. Id. at 300. (See also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005).) Although there are exceptions to the rule of finality and application of res judicata within the VA adjudication system, such as revision of a final decision on the basis of clear and unmistakable error, a freestanding claim for an earlier effective date is not one of the recognized exceptions. See id. at 299-300 (recognizing clear and unmistakable error as a way to overcome the finality of a decision in order to obtain an earlier effective date); DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the VA Secretary). Thusly, the only way that the appellant can prevail in her present claim for DIC is to establish that there was CUE in the prior final rating decision of October 1999 with regard to its assignment of the October 15, 1996 effective date for the Veteran's TDIU award. See Rodriguez.
The October 15, 1996 effective date of the increased rating and TDIU award was predicated on the date on which the RO determined that VA received the Veteran's application to reopen his claim for an increased evaluation. It is evident from a review of the claims file that the RO decided that a VA Form 21-4138 Statement in Support of Claim received by VA on October 15, 1996, in which the Veteran stated, in pertinent part, "I wish to reopen my claim for an increase on my back condition," was his application to reopen his claim. The law governing effective dates for awards of increased ratings of VA compensation that were in effect at the time states, generally, that the effective date of an evaluation and award of pension, compensation or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 1991); 3.400 (1996). 38 C.F.R. § 3.400(o)(2) (1996) further states that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, date of receipt of the claim.
The appellant contends that the October 1999 rating decision committed CUE for failing to recognize that correspondence of record that was received by VA on September 12, 1996, constituted an application from the Veteran to reopen his back disability claim for a rating increase and thusly this date should have been the assigned effective date for the awards of an increased rating and TDIU. The September 1996 correspondence in question is a VA Form 21-4138 Statement in Support of Claim, in which the Veteran expressly requests that "I would like. . . [an] increase for the condition of my Back."
Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of 'failure to follow the regulations' or 'failure to give due process,' or any other general, non-specific claim of 'error' meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
Clear and unmistakable error is 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 a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. The Court has also held that a breach of a duty to assist cannot constitute CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994).
Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k) (2012).
The Court has propounded a three-pronged test to determine whether CUE is present in a prior final 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, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14.
The revision of a final rating decision based on CUE generally will involve the assignment of an earlier effective date for those benefits involved because the governing regulation requires that benefits be paid 'as if the corrected decision had been made on the date of the reversed decision.' 38 C.F.R. § 3.105(a).
Based on the evidence which was of record at the time of the October 1999 RO decision, and the law as it stood at that time, the Board concludes that this rating decision involved CUE. The October 1999 rating decision, which implemented and incorporated the determinations of a September 1999 Board decision, determined that the Veteran's low back disability met the criteria for a 60 percent evaluation (and thusly a TDIU under 38 C.F.R. § 4.16(a)) as of the date VA received correspondence from him on October 15, 1996, requesting a rating increase. Analysis of the October 1999 rating decision, however, does not show why the RO selected this particular VA Form 21-4138 over the one received earlier on September 12, 1996. It is apparent to the Board that the October 1999 decision arbitrarily chose the later date, even though the Veteran had unambiguously expressed his desire for a rating increase in his September 1996 correspondence. As it is factually obvious that the actual date of the Veteran's claim for a rating increase was September 12, 1996, the Board finds that there was CUE in this part of the October 1999 decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The Board will therefore revise the effective date for the Veteran's increased rating and TDIU award to September 12, 1996. The appellant's claim of CUE is thusly granted.
Having determined that there is CUE with respect to the October 1999 rating decision's assignment of an October 15, 1996 effective date for the Veteran's TDIU award, and that the revised effective date is properly September 12, 1996, the Board has considered the evidence of record under the pertinent laws and regulations discussed above. The Board finds that the appellant is entitled to DIC benefits as the requirements of 38 U.S.C.A. § 1318 are now clearly met. The revised effective date for the Veteran's TDIU award results in his having been in receipt of compensation at the 100 percent rate due to service-connected disability for 10 or more years prior to his death. Accordingly, the appellant's appeal is granted.
ORDER
Entitlement to service connection for the Veteran's cause of death is denied.
Entitlement to 38 U.S.C. § 1318 DIC is granted.
____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
Question
carlie
http://www.va.gov/vetapp12/Files6/1242538.txt
Citation Nr: 1242538
Decision Date: 12/12/12 Archive Date: 12/20/12
DOCKET NO. 09-48 184 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for the Veteran's cause of death.
2. Entitlement to 38 U.S.C. § 1318 Dependency and Indemnity Compensation (DIC), to include entitlement to DIC on the basis of clear and unmistakable error (CUE).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The late Veteran served on active duty from July 1951 to January 1954. The appellant in the current appeal is his surviving widow.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the appellant's claims of entitlement to service connection for the Veteran's cause of death and DIC benefits.
In early April 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development, including to obtain an additional medical opinion. The RO/AMC was also directed to consider the appellant's hitherto unadjudicated CUE claim in conjunction with her DIC claim, in which she raised a claim of CUE with respect to an October 1999 rating decision that awarded the late Veteran a 60 percent evaluation for his low back disability and a total rating for individual unemployability (TDIU), effective October 15, 1996. With regard to these actions, the Board observes that the requested medical opinion was obtained in mid-April 2012, and the CUE aspect of the appellant's DIC claim was duly adjudicated in an October 2012 supplemental statement of the case. The Board thusly finds that the RO/AMC's actions are in substantial compliance with its April 2012 remand instructions and that no further remand for corrective action is necessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The October 2012 supplemental statement of the case confirmed and continued the denial of service connection for the Veteran's cause of death and DIC benefits (including entitlement to DIC on the basis of CUE). The case was thereafter returned to the Board in November 2012 and the appellant now continues her appeal.
This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900© (2012).
FINDINGS OF FACT
1. Correspondence from the Veteran was received by VA on September 12, 1996, in which he expressly requested to reopen his claim for a rating increase for his service-connected low back disability. Subsequent correspondence from the Veteran was received by VA on October 15, 1996, reiterating his claim for a rating increase.
2. An October 1999 rating decision implemented a September 1999 Board decision granting the Veteran an increased evaluation to 60 percent for degenerative disc disease (DDD) of the lumbosacral spine, lumbosacral strain, and degenerative joint disease (DJD) of the L3-L5 vertebrae, and a TDIU; these increased ratings became effective October 15, 1996.
3. The Veteran was notified of his appellate rights in connection with the October 1999 rating decision, but the decision was not appealed and became final.
4. The October 1999 rating decision, in considering the evidence and law as it then existed at the time, committed clear and unmistakable error in arbitrarily assigning an effective date of October 15, 1996 for a permanent and total rating for the Veteran's service connected disabilities instead of September 12, 1996, which was the actual date VA received his claim for a rating increase; this error is undebatable and the outcome of the claim would have manifestly changed had it not been made.
5. The Veteran died on September [redacted], 2006 at age 75; his death certificate lists cardiac arrest as his immediate cause of death, due to, or as a consequence of acute myocardial infarctions due to, or as a consequence of coronary artery disease.
6. The Veteran would have been in receipt of compensation at the 100 percent rate due to his service-connected disability for a period of 10 or more years prior to his death, but for clear and unmistakable error in the October 1999 rating decision.
7. At the time of the Veteran's death, service connection was in effect for a chronic low back disability that was diagnostically rated as DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae; these disabilities did not cause or substantially or materially contribute to the Veteran's death.
8. The causes of the Veteran's death were not manifested during active service or for many years thereafter, nor were they otherwise causally related to active service or to a service-connected disability.
CONCLUSIONS OF LAW
1. The October 1999 rating decision, in assigning an effective date of October 15, 1996, for a permanent and total rating for the Veteran's service connected disabilities, committed clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012).
2. The Veteran's service-connected disabilities did not substantially or materially contribute to his death, and his death was not caused by a disability incurred in or aggravated by active service, presumed to have been or by any disability proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309, 3.310, 3.312 (2012).
3. The criteria for entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist.
The first matter to address is whether the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is applicable to that part of the appellant's DIC claim that asserts entitlement on the basis of CUE with respect to a prior final rating decision dated October 1999, which awarded the Veteran a TDIU effective October 15, 1996. In Livesay v. Principi, 15 Vet. App, 165 (2001), the United States Court of Appeals for Veterans Claims (Court) noted that although the VCAA of 2000 was potentially applicable to all pending claims, there were instances where the VCAA of 2000 had no application as a matter of law. Id. at 178. The Court noted that the VCAA added a new section 5100 of Title 38 of the United States Code and that a 'claimant,' as defined by the new 38 U.S.C. § 5100, included a person applying for or seeking benefits under part II or III of Title 38, but could not encompass a person seeking revision of a final decision based on CUE pursuant to 38 U.S.C. §§ 5109A and 7111. Id. at 179. Thus, as the Court held that the VCAA of 2000 did not apply to claims of CUE, no further discussion of the VCAA is warranted in this decision with respect to the CUE component of the appellant's DIC claim. Otherwise, the Board finds that October 1999 rating decision for which CUE is asserted by the appellant and all claims-related documentation and evidence that was associated with the late Veteran's claims file at the time of the October 1999 rating decision is available for consideration by the Board. The outcome of the CUE question is also favorable to the appellant.
With respect to the appellant's claims for the Veteran's cause of death, the Board notes that in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his/her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his/her possession that pertains to the claim. Additionally, in the subsequent case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court held that adequate notice must also include informing the claimant of (4) degree of disability; and (5) effective date. Furthermore, in the context of a claim for service connection for cause of death benefits, statutory notice must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected (predicated on the contentions or theory of service connection advanced by the veteran's survivor). 38 U.S.C.A. § 5103(a). See Hupp v. Nicholson, 21 Vet. App. 342 (2007).
The appellant's claim for VA compensation for service connection for the Veteran's cause of death was received by VA in November 2006. In response, she was furnished with a letter issued in August 2007, prior to the RO's adjudication of the claim in October 2007, which did not fully comply with the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006), and Hupp v. Nicholson, 21 Vet. App. 342 (2007). Thusly, the August 2007 notice letter is defective in its content. No further notice was sent to the appellant to correct these defects. While acknowledging these defects, the Board finds that they do not result in any prejudice to the appellant. With respect to the Dingess/Hartman deficiencies, as this decision is denying the appellant's cause of death claim on appeal, the issues of ratings and effective dates assigned for awards of VA compensation are rendered moot. With regard to the Hupp deficiencies, the record reflects that the appellant's contentions and the proactive actions that she undertook to develop her cause of death claim demonstrate that she had actual knowledge of the disabilities for which a Veteran was service connected at the time of his death (i.e., a chronic low back disability); and that she also knew that she needed to submit evidence that would establish a nexus between the Veteran's established cause of death (as listed in his death certificate) and his period of military service, either as directly or presumptively linked to such service or as secondarily related to the Veteran's service-connected chronic low back disability. Thus, in view of the foregoing discussion, the Board concludes that VA's duty to notify in this case is satisfied.
In addition, the Board finds that the duty to assist the appellant has been satisfied. All relevant records that are obtainable have been associated with the Veteran's claims file and were reviewed by both the RO and the Board in connection with the claim. The late Veteran's service personnel and treatment records and his relevant post-service treatment records for the period from 1954 - 1998, and also his official death certificate listing those conditions which caused or contributed to his death in September 2006, have been obtained and associated with the evidence.
Additionally, VA has provided the Veteran's claims file containing the aforementioned medical evidence to VA examiners for review, after which nexus opinions addressing the likelihood that the Veteran's death was service-related were presented in reports dated in June 2009 and April 2012. These opinions are predicated on a thorough review of the Veteran's pertinent clinical history and are supported by a detailed rationale. As such, the Board deems them to be adequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
In view of the foregoing discussion, the Board concludes that the appellant has had adequate opportunity to present evidence and argument in support of her claim for service connection for the Veteran's cause of death and that there has been sufficient development of the record to adjudicate the claim on the merits. A remand for further evidentiary development is therefore unnecessary.
With respect to the appellant's claim for DIC pursuant to the provisions of 38 U.S.C.A. § 1318, as will be further discussed in the analysis below, the Board has determined that based on a finding of CUE with regard to a pertinent prior final rating decision, there is legal entitlement to the claimed benefit and the appeal is being granted in full. Thusly, no further discussion of the VCAA notice requirements and VA's duty to assist is necessary with respect to this specific matter.
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
(a.) Factual background and analysis: Entitlement to service connection for the Veteran's cause of death.
The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of the Veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a).
For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312©(1).
Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).
In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The Veteran's claims file shows that he died on September [redacted], 2006 at age 75. His death certificate shows that his immediate cause of death was listed as cardiac arrest due to, or as a consequence of acute myocardial infarctions due to, or as a consequence of coronary artery disease. Other significant medical conditions identified in the death certificate as contributing to the Veteran's death but not resulting in the underlying cause were past history of myocardial infarctions, a below-the-knee amputation performed shortly prior to death on September 13, 2006, and Alzheimer's disease.
At the time of the Veteran's death, service connection was in effect for a DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae.
The Veteran's service medical records do not show treatment or onset of cardiovascular disease or hypertension during active duty. His heart and vascular system were normal on entrance examination in July 1951 and separation examination in January 1954. Chest X-ray study was also normal on separation examination in January 1954. Post-service VA medical examination in June 1954 also shows normal findings on chest X-ray and cardiovascular evaluation. Thereafter, clinical findings indicative of onset of cardiovascular disease are not objectively demonstrated until a March 1974 VA hospitalization report, in which the Veteran was treated for complaints of chest pain who reported onset began six months earlier. A diagnosis of essential hypertension with a history of hypertension of six months duration was also presented.
To the extent that the appellant claims entitlement to service connection for cardiovascular disease that ultimately caused the Veteran's death, the Board finds no clinical basis to allow service connection on a direct basis in view of the foregoing evidence showing no diagnoses of hypertension, cardiomegaly, or heart disease in service or manifest to a compensable degree within one year following the Veteran's discharge from active duty. There is also no objective medical or lay evidence of continuity of symptomatology.
The Board has considered the appellant's contention that service connection for the Veteran's cause of death should be allowed on the theory that his fatal cardiovascular disease was secondary to, or aggravated by his service-connected lumbosacral spine disability. In this regard, she cites pharmacological literature that states that users of certain non-steroidal anti-inflammatory drugs (NSAIDs) to treat orthopedic symptoms "may have a higher risk of having a heart attack or stroke. . ." She also raises the theory that the Veteran's inability to engage in physical exercise due to his service-connected low back disability also contributed to a worsening of his cardiovascular disease that materially contributed to his death. Citation was made to a report from the Mayo Clinic about the cardiovascular health benefits of regular exercise.
To address the appellant's contentions, the Veteran's claims file and relevant clinical history was provided to a VA physician in June 2009 and April 2012 for his review. As relevant, the examiner opined in June 2009 that it was less likely than not (i.e., less than a 50/50 probability) the Veteran's death due to cardiac arrest was related to the medications used by him to treat his back disability symptoms, as the specific NSAIDs prescribed to him are not of the class of NSAIDs that are definitively shown to cause or exacerbate heart disease.
The VA examiner also expressed his opinion in June 2009 that it was less likely than not that the Veteran's limited mobility due to his service-connected low back disability caused or contributed to his cardiovascular disease and fatal cardiac arrest. The medical rationale was that lack of physical mobility is not a recognized cardiac risk factor when considering the risk of sudden cardiac death. Furthermore, the opining physician stated that none of the recognized clinical guidelines for risk scoring/assessment of cardiac events list limited physical mobility as a risk factor.
In April 2012, the VA physician re-reviewed the Veteran's claims file and expressed his opinion that the late Veteran's death from cardiac arrest was less likely than not caused by, incurred in, or aggravated by his period of active military service; that the late Veteran's death from cardiac arrest was less likely than not caused or aggravated by his service connected low back disability; and that it was less likely than not that the late Veteran's service connected low back disability caused, hastened, or substantially and materially contributed to his death from cardiac arrest. The examiner's clinical discussion re-cited the rationale presented in the June 2006 opinion. He also presented the following additional discussion:
[My] detailed review of the C file/treatment chart. . . confounds the notion that [the Veteran's] lack of mobility was due to [his service-connected low] back condition. He had a well documented [chronic obstructive pulmonary disease], peripheral vascular disease and [Alzheimer's related] dementia. So, even if his lack of mobility is considered an etiology for his [coronary artery disease] (which I do not) it is documented that these [non-service-connected] conditions were the major factors in his limitation [of mobility] rather than his [service-connected] back condition.
There is no evidence that [the Veteran] had [coronary artery disease] while in the service based on the C file documents.
The Board finds that the VA physician's opinions of June 2009 and April 2012 are highly probative evidence weighing against the appellant's claim for service connection for the Veteran's cause of death. The opinions have considered the theories presented in her contentions and have objectively determined that there is no clinical basis to etiologically associate the Veteran's service-connected lumbosacral spine disability with his death due to cardiac arrest due to cardiovascular disease. The 2009 and 2012 opinions also conclusively determined that there is no nexus between the Veteran's military service and the cardiovascular disease that ultimately led to his death.
To the extent that the appellant asserts that her own personal knowledge of medicine and the Veteran's medical condition and history are sufficient in and of themselves to provide a basis to associate the Veteran's military service and/or his service-connected disabilities with his death, the Board notes that there is nothing in the record that indicates that she is a medical professional. Moreover, the determination of the cause of the Veteran's death, including the relative contributions of his myriad of health problems, is clearly a matter well outside a layperson's expertise to address. Because the matter at hand requires medical expertise, and as the appellant lacks the requisite medical training to have the expertise to make medical diagnoses or provide opinions on matters regarding medical causation and etiology, her statements in this regard are therefore not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the Board is cognizant of the late Veteran's honorable service in the defense of his country and is sympathetic to his widow's situation, her personal belief in the existence of a relationship between the cause of the Veteran's death and his military service or service connected disability, no matter how sincere, is not probative of a nexus to service if unsupported by objective medical evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999).
In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the appellant's claim of service connection for the Veteran's cause of death. The late Veteran's service-connected disabilities have been clinically determined to have not been causal or substantially or materially contributing factors to his death, and his primary cause of death due to cardiac arrest, due to myocardial infarction, due to coronary artery disease is unrelated to his military service. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
(b.) Factual background and analysis: Entitlement to 38 U.S.C. § 1318 DIC, to include entitlement to DIC on the basis of CUE.
A surviving spouse may establish entitlement to dependency and indemnity compensation where it is shown that a veteran's death was not the result of willful misconduct, and at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability and meets the following criteria: (1) that the veteran was continuously rated totally disabled for the 10 years immediately preceding death; (2) that the veteran was rated totally disabled upon separation from service, was continuously so rated, and died at least five years after separation from service; or, (3) that the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b) (West 2002). The statute was implemented by VA at 38 C.F.R. § 3.22.
Thereafter, in Wingo v. West, 11 Vet. App. 307 (1998), the Court interpreted 38 C.F.R. § 3.22(a) as permitting a DIC award in a case where the veteran had not established entitlement to VA compensation for a service-connected total disability and had never filed a claim for such benefits which could have resulted in entitlement to compensation for the required period. The Court concluded that the language of 38 C.F.R. § 3.22(a) would permit a DIC award where it is determined that the veteran "hypothetically" would have been entitled to a total disability rating for the required period if he or she had applied for compensation during his or her lifetime.
Effective January 21, 2000, VA promulgated a final regulation pertaining to DIC benefits for survivors of certain veterans rated totally disabled at time of death. See 65 Fed. Reg. 3,388-3,392 (2000); see 38 C.F.R. § 3.22. The final regulation reflected VA's conclusion that 38 U.S.C.A. § 1318(b) authorizes payment of DIC only in cases where the veteran had, during his or her lifetime, established a right to receive total service-connected disability compensation from VA for the period required by that statute, or would have established such a right if not for clear and unmistakable error by VA.
In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the Federal Circuit held that, for the purpose of determining whether a survivor is entitled to "enhanced"" DIC benefits under a different statute, 38 U.S.C.A. § 1311(a)(2) (West 2002) (veteran required to have been rated totally disabled for a continuous period of eight years prior to death), the implementing regulation, 38 C.F.R. § 20.1106, does permit "hypothetical entitlement."
However, in National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) (NOVA I), the Federal Circuit addressed a challenge to the validity of 38 C.F.R. § 3.22, and found a conflict between that regulation and 38 C.F.R. § 20.1106. The Federal Circuit concluded that the revised 38 C.F.R. § 3.22 was inconsistent with 38 C.F.R. § 20.1106, which interprets a virtually identical veterans benefit statute, 38 C.F.R. § 1311(a)(2), and that VA failed to explain its rationale for interpreting these virtually identical statutes (38 U.S.C.A. § 1311 and 38 U.S.C.A. § 1318) in conflicting ways. The Federal Circuit remanded the case, and directed VA to stay all proceedings involving claims for DIC benefits under 38 U.S.C.A. § 1318 where the outcome is dependent on 38 C.F.R. § 3.22, pending the conclusion of expedited VA rulemaking.
Accordingly, on April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit available under 38 U.S.C. § 1311(a)(2). See 67 Fed. Reg. 16,309-16,317 (April 5, 2002), effective May 6, 2002. In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II), regarding a challenge to the validity of 38 C.F.R. § 3.22 as amended January 21, 2000, the Federal Circuit held, in part, that 38 C.F.R. § 3.22 as amended was not invalid insofar as it precluded "hypothetical entitlement" as an additional basis for establishing eligibility under 38 U.S.C.A. § 1318. The Federal Circuit held that VA could properly construe the "entitled to receive" language of sections 1311(a)(2) and 1318 in the same way, and could properly construe the language of the two statutory sections to bar the filing of new claims, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening, i.e., "hypothetical entitlement" claims.
In Rodriguez v. Peake, 511 F.3d 1147 (Fed. Circ. 2008), the Federal Circuit held that the application of amended section 3.22 to the appellee's claim did not create an unlawful retroactive effect because it did not retrospectively diminish any of her rights to benefits. Thus, the Federal Circuit held that 38 C.F.R. § 3.22, as amended in 2000, did not have an unlawful retroactive effect and may be applied to claims for DIC benefits filed by survivors before the amendment took effect.
Based on the foregoing, VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under either 38 U.S.C.A. § 1311(a)(2) or 38 U.S.C.A. § 1318. Therefore, the only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C.A. § 1318 are (1) to meet the statutory duration requirements for a total disability rating at the time of death; or (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision.
As relevant, at the time of the Veteran's death on September [redacted], 2006, service connection was in effect for DDD of the lumbosacral spine, lumbosacral strain, and DJD of the L3-L5 vertebrae, which was rated 60 percent disabling as a single disabling entity. He was also in receipt of a TDIU. The effective date of both the 60 percent disability rating and the TDIU award was October 15, 1996. Thusly, the Veteran did not have a total rating that was in continuous effect for 10 or more years at the time of his death (September [redacted], 2006).
In essence, the appellant seeks an earlier effective date for the late Veteran's TDIU award in order to meet the criteria for entitlement to § 1318 DIC. However, the October 15, 1996 effective date for the TDIU was assigned by an October 1999 rating decision, which was not timely appealed and became final. The Court held in Rudd v. Nicholson, 20 Vet. App. 296 (2006), that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned that to allow such claims would vitiate the rule of finality. Id. at 300. (See also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005).) Although there are exceptions to the rule of finality and application of res judicata within the VA adjudication system, such as revision of a final decision on the basis of clear and unmistakable error, a freestanding claim for an earlier effective date is not one of the recognized exceptions. See id. at 299-300 (recognizing clear and unmistakable error as a way to overcome the finality of a decision in order to obtain an earlier effective date); DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the VA Secretary). Thusly, the only way that the appellant can prevail in her present claim for DIC is to establish that there was CUE in the prior final rating decision of October 1999 with regard to its assignment of the October 15, 1996 effective date for the Veteran's TDIU award. See Rodriguez.
By history, the Veteran was granted service connection for a chronic low back disability by rating decision dated in July 1954. In an October 1999 rating decision, which effectuated a September 1999 Board decision, the 40 percent rating assigned for his low back disability was increased to 60 percent. He was also granted a TDIU. Both award were made effective October 15, 1996. Notice of the October 1999 rating decision and the Veteran's appellate rights were furnished to the Veteran in correspondence dated in October 1999. The record indicates that he did not file a timely notice of disagreement to initiate an appeal, and the October 1999 rating decision became final. 38 U.S.C.A. § 7105© (West 1991).
The October 15, 1996 effective date of the increased rating and TDIU award was predicated on the date on which the RO determined that VA received the Veteran's application to reopen his claim for an increased evaluation. It is evident from a review of the claims file that the RO decided that a VA Form 21-4138 Statement in Support of Claim received by VA on October 15, 1996, in which the Veteran stated, in pertinent part, "I wish to reopen my claim for an increase on my back condition," was his application to reopen his claim. The law governing effective dates for awards of increased ratings of VA compensation that were in effect at the time states, generally, that the effective date of an evaluation and award of pension, compensation or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 1991); 3.400 (1996). 38 C.F.R. § 3.400(o)(2) (1996) further states that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, date of receipt of the claim.
The appellant contends that the October 1999 rating decision committed CUE for failing to recognize that correspondence of record that was received by VA on September 12, 1996, constituted an application from the Veteran to reopen his back disability claim for a rating increase and thusly this date should have been the assigned effective date for the awards of an increased rating and TDIU. The September 1996 correspondence in question is a VA Form 21-4138 Statement in Support of Claim, in which the Veteran expressly requests that "I would like. . . [an] increase for the condition of my Back."
Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of 'failure to follow the regulations' or 'failure to give due process,' or any other general, non-specific claim of 'error' meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
Clear and unmistakable error is 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 a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. The Court has also held that a breach of a duty to assist cannot constitute CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994).
Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k) (2012).
The Court has propounded a three-pronged test to determine whether CUE is present in a prior final 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, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14.
The revision of a final rating decision based on CUE generally will involve the assignment of an earlier effective date for those benefits involved because the governing regulation requires that benefits be paid 'as if the corrected decision had been made on the date of the reversed decision.' 38 C.F.R. § 3.105(a).
Based on the evidence which was of record at the time of the October 1999 RO decision, and the law as it stood at that time, the Board concludes that this rating decision involved CUE. The October 1999 rating decision, which implemented and incorporated the determinations of a September 1999 Board decision, determined that the Veteran's low back disability met the criteria for a 60 percent evaluation (and thusly a TDIU under 38 C.F.R. § 4.16(a)) as of the date VA received correspondence from him on October 15, 1996, requesting a rating increase. Analysis of the October 1999 rating decision, however, does not show why the RO selected this particular VA Form 21-4138 over the one received earlier on September 12, 1996. It is apparent to the Board that the October 1999 decision arbitrarily chose the later date, even though the Veteran had unambiguously expressed his desire for a rating increase in his September 1996 correspondence. As it is factually obvious that the actual date of the Veteran's claim for a rating increase was September 12, 1996, the Board finds that there was CUE in this part of the October 1999 decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The Board will therefore revise the effective date for the Veteran's increased rating and TDIU award to September 12, 1996. The appellant's claim of CUE is thusly granted.
Having determined that there is CUE with respect to the October 1999 rating decision's assignment of an October 15, 1996 effective date for the Veteran's TDIU award, and that the revised effective date is properly September 12, 1996, the Board has considered the evidence of record under the pertinent laws and regulations discussed above. The Board finds that the appellant is entitled to DIC benefits as the requirements of 38 U.S.C.A. § 1318 are now clearly met. The revised effective date for the Veteran's TDIU award results in his having been in receipt of compensation at the 100 percent rate due to service-connected disability for 10 or more years prior to his death. Accordingly, the appellant's appeal is granted.
ORDER
Entitlement to service connection for the Veteran's cause of death is denied.
Entitlement to 38 U.S.C. § 1318 DIC is granted.
____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
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