Citation Nr: 0417563 Decision Date: 06/30/04 Archive Date: 07/13/04 DOCKET NO. 03-19 825 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to February 1, 2001, for an award of Dependency and Indemnity Compensation (DIC) based on the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and her daughters ATTORNEY FOR THE BOARD John J. Crowley, Senior Counsel INTRODUCTION The veteran served on active duty from April 1942 to October 1945. The veteran died on February [redacted], 1992. The appellant is his widowed spouse. In July 1992, the RO denied service connection for the cause of the veteran's death. The appellant was notified of this decision that month and did not file timely disagreement to this determination. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 determination that granted service connection for the cause of the veteran's death. A notice of disagreement (NOD) was received in February 2003. A statement of the case (SOC) was issued in April 2003. A substantive appeal was received from the appellant in May 2003. FINDINGS OF FACT 1. The appellant filed a claim seeking service connection for the cause of the veteran's death in March 1992, within one year of the veteran's death on February [redacted], 1992. 2. By rating decision in July 1992, the RO denied service connection for the cause of the veteran's death. The appellant was notified of this decision that month and did not file timely disagreement to this determination. 3. Based on a request to reopen the claim received on January 24, 2001, service connection for the cause of the veteran's death was granted by rating decision in March 2002. 4. The July 1992 rating decision contained clear and unmistakable error as it failed to recognize the clear presence of a service connected disorder that could have materially hastened the onset of the veteran's death. CONCLUSIONS OF LAW 1. The RO rating decision of July 1992 contained clear and unmistakable error. 38 C.F.R. § 3.105(a) (2004). 2. The criteria for an effective date of March 1, 1992, for the award of DIC benefits based on service connection for the cause of the veteran's death have been met. 38 U.S.C.A. §§ 5107, 5108, 5110(a), 5105 (West 2002); 38 C.F.R. § 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant and her representative contend that she should be awarded service connection for the cause of the veteran's death from February 1992, the month of the veteran's death. However, the RO denied the initial claim in July 1992. The appellant did not file a notice of disagreement to initiate an appeal, and the July 1992 decision therefore became final. 38 U.S.C.A. § 7105(c). A request from the appellant to reopen this claim was received on January 24, 2001. The claim was eventually granted within a March 2002 rating action. The RO assigned an effective date of February 1, 2001; the first month after receipt of the petition to reopen the claim was received on January 24, 2001. The effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(1)(ii); 3.400(r). When a claim is granted based on new and material evidence (other than service records) received after a prior final decision, the effective date is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). In the present case, under laws and regulations applicable to reopened claims, it is clear that a February 1, 2001, effective date would be proper. Nonetheless, this finding does not end the Board's consideration of this claim. Under 38 C.F.R. § 3.105(a) (2003), a prior decision must be reversed or amended where evidence establishes clear and unmistakable error (CUE). In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (Court) has established a three- prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). The Board wishes to emphasize that the Court has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "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). Clear and unmistakable error "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the RO evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In this case, it is contended that it was clear error for the RO to fail to award the appellant service connection for the cause of he veteran's death when she initially filed this claim one month after the veteran's death. The record that was available at the time of the 1992 rating action included service medial records documenting high blood pressure readings. The Board does not believe that this finding alone would be sufficient to establish CUE as there was no express medical finding identifying a heart disorder related to service in 1992. The decision to grant service connection for the cause of the veteran's death was based, in part, on a January 2002 medical opinion of "J.A.R.", D.O., who found that blood pressure readings beginning in 1943 were consistent with mild hypertension. It was also found that the elevated blood pressure the veteran had experienced over the years were likely an effect from the corticosteroid medications used to treat his service connected chronic psoriasis condition. At the time of the veteran's death, service connection was in effect for generalized and "very severe" psoriasis, evaluated as 50 percent disabling from April 1950. The January 2002 medical opinion did not exist at the time of the July 1992 rating action. Consequently, this opinion cannot form the basis of conclusion that the July 1992 rating action contains CUE. However, the medical findings of Dr. R. are based entirely on records that were before the RO when it adjudicated this case in July 1992, including the service medical records. Within the July 1992 rating action, the RO found that it was "not indicated that the veteran has a service-connected disability which could have materially hastened the onset of death." This is not accurate. Within a medical report dated April 1950 (a record that was before the RO when it adjudicated this claim in July 1992), a "C.S.M.", M.D., stated that the veteran had one of the most "severe type of psoriasis lesions I have ever seen." Clearly, the severe nature of this skin disorder, as conceded by the RO within the rating action dated July 1950 (when it refers to the condition as "very severe" and awards the veteran a very high disability evaluation for a skin condition) provides a basis to find that this condition "could" have materially hastened the onset of death. The January 2002 medical opinion only confirms that the veteran did, in fact, have a service-connected disability that could, and did, materially hastened the onset of death. The RO may not, on the one hand, find that the veteran suffers from a "very severe" service connected disorder and then find that there is no indication at all that a service connected condition could not have materially hastened the onset of death without some explanation. No evidence is cited by the RO in support of this finding and medical evidence obtained after this finding only prove the RO to be incorrect. Consequently, the Board finds that the finding of the RO in July 2001 was clearly and unmistakably in error. In this case, the correct facts, as they were known at the time, were not before the RO (i.e., a service connected condition clearly did exist that could have caused or hastened death), the error is undebatable and manifestly changes the outcome of the decision, and the error is based on the record and law that existed at the time of the prior adjudication in question. The July 1992 rating decision that denied this claim contained clear and unmistakable error in a failure to recognize the presence of a service connected disability that could have materially hastened the onset of death. The testimony of the appellant and her daughters, along with the service medical records, only provide additional information in support of the appellant's claim. As clear and unmistakable error in the July 1992 rating decision has been established, the Board may award the appellant an earlier effective date prior to the actions of the July 1992 rating action. In this case, the appellant file her initial claim within one year of the veteran's death. Consequently, the Board finds that under 38 C.F.R. § 3.400(c)(2) entitlement to an effective date of March 1, 1992, the first month after the veteran's death, is warranted for an award of DIC based on the cause of the veteran's death. Veterans Claims Assistance Act The Board observes that an enacted law, the Veterans Claims Assistance Act of 2000 (VCAA), and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2003). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record reflects that the appellant and her representative were provided with a copy of the appealed rating action, and were provided a SOC. In addition, a letter was provide to the appellant in July 2003 citing additional evidence needed by the appellant. Thus, under the circumstances in this case, even in light of the recent decision in Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004) (withdrawing and replacing the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (which held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA- administered benefits)), VA has satisfied its duties to notify and assist the veteran, and adjudication of this appeal poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In the first Pelegrini decision, the Court determined that VA had failed to demonstrate that a lack of such a pre-adjudication notice was not prejudicial to the claimant. See 38 U.S.C.A § 7261(b) (West 2002) (providing that "[i]n making the determinations under [38 U.S.C.A. § 7261(a)], the Court shall take due account of the rule of prejudicial error."). In the claim before the Board at this time, in light of the total grant of the benefits awarded in this decision, any error in notification is considered to be harmless. As such, more specific notice is not indicated. ORDER Entitlement to an effective date of March 1, 1992, for the award of Dependency and Indemnity Compensation based on the cause of the veteran's death is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2