Citation Nr: 0715614	
Decision Date: 05/24/07    Archive Date: 06/01/07

DOCKET NO.  03-29 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, 
Kansas



THE ISSUES

1.  Entitlement to service connection for the cause of the 
veteran's death.

2.  Entitlement to Dependency and Indemnity Compensation 
(DIC) pursuant to the provisions of 38 U.S.C. § 1318.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jessica J. Wills Associate Counsel 
INTRODUCTION

The veteran served on active duty from February 1942 to 
August 1945.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a January 2003 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Wichita, Kansas, which denied the benefits sought on 
appeal.  The appellant, the surviving wife of the veteran, 
appealed that decision to BVA, and the case was referred to 
the Board for appellate review.  The Board remanded the case 
for further development in January 2005.  That development 
was completed, and the case has since been returned to the 
Board for appellate review.


FINDINGS OF FACT

1. All relevant evidence necessary for an equitable 
disposition of the appellant's appeal has been obtained.

2. The veteran's death certificate shows that he died in 
October 2002, and the immediate cause of death was listed as 
multiple myeloma.

3. At the time of the veteran's death, service connection had 
been established for amputation of the lower third of the 
left thigh, osteoarthritis of the right knee with baker's 
cyst, residuals of a fracture of the right radius, and 
residuals of a shell wound scar of the left scapula.

4. The cause of the veteran's death developed many years 
after service and was not the result of a disease or injury 
incurred in active service.

5.  The veteran was not in receipt of compensation at the 100 
percent rate due to service-connected disability for a period 
of at least five years immediately after his discharge from 
active service, or for 10 or more years prior to his death.  
Nor would he have been in receipt of such compensation in 
either case, but for clear and unmistakable error in a prior 
decision, which has not been established here.


CONCLUSIONS OF LAW

1. The requirements for service connection for the cause of 
the veteran's death have not been met. 38 U.S.C.A. §§ 1110, 
1131, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.300, 
3.303, 3.312 (2006).

2.   The criteria for entitlement to Dependency and Indemnity 
Compensation benefits pursuant to 38 U.S.C.A. § 1318 have not 
been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 
(2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The notice required must be provided to the 
claimant before the initial unfavorable decision on a claim 
for VA benefits, and it must (1) inform the claimant about 
the information and evidence not of record that is necessary 
to substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim.  38 U.S.C.A. §§ 5103(a); 38 
C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 
112, 120 (2004).

With respect to the appellant's claim for DIC, the Board has 
determined that there is no legal entitlement to the claimed 
benefits as a matter of law.  The notice provisions and duty 
to assist provisions are not applicable to a claim, where the 
claim cannot be substantiated because there is no legal basis 
for the claim or because undisputed facts render the claimant 
ineligible for the claimed benefit. VAOPGCPREC 5-2004 (June 
23, 2004).  This matter involves an inquiry based upon the 
evidence of record prior to the veteran's death and not based 
upon the development of new evidence.  As there is no dispute 
as to the underlying facts of this case, and as the Board has 
denied the claim as a matter of law, the notice and duty to 
assist provisions are inapplicable.  See e.g., Livesay v. 
Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. 
Principi, 15 Vet. App. 362 (2001).

Given the foregoing, there is no issue as to whether VA has 
complied with its duty to notify the appellant of her duties 
to obtain evidence, see Quartuccio v. Principi, 16 Vet. App. 
183 (2002), and the Board finds that there is no reasonable 
possibility that any further assistance would aid the 
appellant in substantiating her claim for DIC.  38 U.S.C.A. 
§§ 5102, 5103 and 5103A (West 2002); Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994) (remands which would only result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to an appellant are to be avoided).  
Accordingly, it is not prejudicial for the Board to decide 
the issue of entitlement to and DIC without further 
development.  Bernard v. Brown, 4 Vet. App. 384 (1993). 

With respect to the claim for service connection for the 
veteran's cause of death, the Board does acknowledge that the 
RO did not provide the appellant with notice prior to the 
initial rating decision in January 2003.  Nevertheless, the 
RO did send the appellant letters in September 2003 and 
January 2005 in connection with her claim, which did meet the 
notification requirements.  The Board finds that any defect 
with respect to the timing of the notice requirement was 
harmless error.

In this regard, the Board notes that, while notice provided 
to the appellant was not given prior to the first AOJ 
adjudication of the case, notice was provided by the AOJ 
prior to the most recent transfer and certification of the 
appellant's case to the Board, and the content of the notice 
fully complied with the requirements of 38 U.S.C. § 5103(a) 
and 38 C.F.R. § 3.159(b).  After the notice was provided, the 
appellant's claim for service connection for the cause of the 
veteran's death was readjudicated in supplemental statements 
of the case (SSOC).  The claimant has been provided with 
every opportunity to submit evidence and argument in support 
of her claim and to respond to VA notices, and she has taken 
full advantage of these opportunities, submitting evidence 
and argument in support of her claim.  Viewed in such 
context, the furnishing of notice after the decision that led 
to this appeal did not compromise the essential fairness of 
the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. 
Cir. 2004).  The veteran has had a "meaningful opportunity to 
participate effectively," Dingess/Hartman, and the Board 
finds that the present adjudication of the appeal will not 
result in any prejudice to the appellant.  Therefore, with 
respect to the timing requirement for the notice, the Board 
concludes that to decide this appeal would not be prejudicial 
to the claimant.

Moreover, the requirements with respect to the content of the 
notice were met in this case.  The RO informed the appellant 
in the notice letters about the information and evidence that 
is necessary to substantiate her claims.  Specifically, the 
September 2003 letter indicated that in order to obtain DIC 
the evidence must show that the veteran died while on active 
duty; died from a service-related injury or disease; or, died 
from an injury or disease that was not related to service, 
but was totally disabled due to a service-related injury for 
a period of at least ten years immediately preceding his 
death, for a period of at least five years from the date of 
his military discharge, or for at least one year before his 
death if he was a prisoner of war (POW) who died after 
September 30, 1999.  Additionally, the September 2003 
statement of the case (SOC) and the February 2004, November 
2006, and February 2007 supplemental statements of the case 
(SSOC) notified the appellant of the reasons for the denial 
of her application and, in so doing, informed her of the 
evidence that was needed to substantiate her claims.  

In addition, the RO notified the appellant in the notice 
letters about the information and evidence that VA will seek 
to provide.  In particular, the September 2003 and January 
2005 letters indicated that reasonable efforts would be made 
to help her obtain evidence necessary to support her claim 
and that VA was requesting all records held by Federal 
agencies, including service medical records, military 
records, and VA medical records. The appellant was also 
informed that a medical opinion would be obtained if it was 
determined that such evidence was necessary to make a 
decision on her claim.

The RO also informed the appellant about the information and 
evidence that she was expected to provide.  Specifically, the 
September 2003 and January 2005 letters notified the 
appellant that she must provide enough information about the 
veteran's records so that they could be requested from the 
agency or person that has them.  The January 2005 letter also 
requested that she complete and return the enclosed VA Form 
21-4142, Authorization and Consent to Release Information to 
the Department of Veterans Affairs, if there were any private 
medical records that she would like VA to obtain on her 
behalf.   In addition, the September 2003 and January 2005 
letters informed the appellant that it was her responsibility 
to ensure that VA received all requested records that are not 
in the possession of a Federal department or agency.  
Similarly, the January 2005 letter also stated that it was 
still her responsibility to support her claim with 
appropriate evidence. 

Although the notice letters that were provided to the 
appellant did not specifically contain the "fourth 
element," the Board finds that the appellant was otherwise 
fully notified of the need to give to VA any evidence 
pertaining to her claims.  In this regard, the RO has 
informed the appellant in the rating decision, SOC, and SSOCs 
of the reasons for the denial of her claims and, in so doing, 
informed her of the evidence that was needed to substantiate 
those claims.

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  As noted above, 
because each of the four content requirements of notice has 
been fully satisfied in this case, any error in not providing 
a single notice to the appellant covering all content 
requirements is harmless error. 

Further, during the pendency of this appeal, on March 3, 
2006, the United States Court of Appeals for Veterans Claims 
(Court) issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, 
which held that the notice requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include:  
1) veteran status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
Additionally, this notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Id.  

In the present appeal, the appellant was provided with notice 
of the type of evidence necessary to establish a disability 
rating and effective date.  In this regard, the Board notes 
that the November 2006 and February 2007 SSOCs informed her 
that a disability rating was assigned when a disability was 
determined to be service-connected and that such a rating 
could be changed if there had been changes in the veteran's 
condition.  The SSOCs also explained how disability ratings 
and effective dates were determined.

In addition, the duty to assist the appellant has also been 
satisfied in this case.  The veteran's service medical 
records as well as all available VA and private medical 
records pertinent to the years after service are in the 
claims file and were reviewed by both the RO and the Board in 
connection with the appellant's claims.  The RO did attempt 
to obtain the treatment records surrounding the veteran's 
death.  In fact, a letter was sent to the appellant in 
October 2005 informing her that the medical records 
documenting the veteran's treatment for multiple myeloma in 
2002 could not be obtained because VA did not have funds to 
pay for them.  The letter also requested that she send a copy 
of those treatment records if she would like them considered.  
Additional letters were sent in January 2006 and March 2006, 
which indicated that VA was waiting for her response to the 
October 2005 letter.  However, the appellant never submitted 
such records.  In addition, medical opinions were also 
obtained in April 2005, June 2005, and November 2006.  VA has 
further assisted the appellant and her representative 
throughout the course of this appeal by providing them with a 
SOC and SSOC, which informed them of the laws and regulations 
relevant to the appellant's claims.  For these reasons, the 
Board concludes that VA has fulfilled the duty to assist the 
appellant in this case.

I.  Service Connection for the Cause of the Veteran's Death

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in line of duty in the active military, naval, or air 
service.  38 U.S.C.A. § 1110.  That an injury or disease 
occurred in service is not enough; there must be chronic 
disability resulting from that injury or disease. 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).  Service connection may also be granted for any 
injury or disease diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes 
that the disease or injury was incurred in service.  38 
C.F.R. § 3.303(d).

Service connection may also be granted on a presumptive basis 
for certain chronic disabilities, including malignant tumors, 
when manifested to a compensable degree within the initial 
post-service year.  38 C.F.R. §§ 3.307, 3.309(a).

The death of a veteran will be considered as having been due 
to a service-connected disability where the evidence 
establishes that such disability was either the principal or 
contributory cause of death.  38 C.F.R. § 3.312(a).  A 
principal cause of death is one which, singularly or jointly 
with some other condition, was the immediate or underlying 
cause of death, or was etiologically related thereto.  38 
C.F.R. § 3.312(b).  A contributory cause of death is one 
which contributes substantially or materially to death, or 
aided or lent assistance to the production of death.  38 
C.F.R. § 3.312(c).  Service-connected disabilities or 
injuries involving active processes affecting vital organs 
should receive careful consideration as a contributory cause 
of death, the primary cause being unrelated, from the 
viewpoint of whether there was resulting debilitating effects 
and general impairment of health to the extent that would 
render the person less capable of resisting the effects of 
either disease or injury primarily causing death.  38 C.F.R. 
§ 3.312(c)(3).  There are primary causes of death which by 
their very nature are so overwhelming that eventual death can 
be anticipated irrespective of co-existing conditions, but, 
even in such cases, there is for consideration whether there 
may be reasonable basis for holding that a service-connected 
condition was of such severity as to have a material 
influence in accelerating death.  38 C.F.R. § 3.312(c)(4).

In considering the evidence of record under the laws and 
regulations as set forth above, the Board concludes that 
service connection for the cause of the veteran's death is 
not warranted.  A certificate of death indicates that the 
veteran died in October 2002, and the immediate cause of 
death was listed as multiple myeloma.  At the time of the 
veteran's death, service connection had been established for 
amputation of the lower third of the left thigh, 
osteoarthritis of the right knee with a baker's cyst, 
residuals of a fracture of the right radius, and residuals of 
a shell wound scar of the left scapula.  The medical evidence 
of record does not show that the veteran's service-connected 
disabilities were a principal or contributory cause of his 
death.  In fact, the veteran's death certificate does not 
make any reference to those disorders. 

Moreover, the April 2005 VA examiner indicated that the 
etiology of the veteran's myeloma was unknown, but stated 
that it was not due to trauma or wear and tear.  He indicated 
that the myeloma developed and weakened the bone to the point 
that he fractured his vertebrae when he fell, but the 
examiner opined that it was irrelevant that the veteran was 
trying to apply his prosthesis at the time he fell.  As such, 
the April 2005 VA examiner concluded that there was no 
evidence whatsoever that that the veteran's demise was in 
anyway related to his left thigh amputation or to any event 
that occurred while he was on active duty.  

Additionally, the June 2005 VA examiner opined that none of 
the veteran's service-connected disabilities or the related 
stress were known causes of multiple myeloma and stated that 
it was much less likely than not that any of his service-
connected disabilities caused his multiple myeloma.  The 
examiner did indicate that the veteran's service-connected 
disabilities could have adversely affected the outcome of the 
myeloma, but he also noted that he did not have the veteran's 
medical records from his last hospitalization and stated that 
such acceleration was too difficult to quantify.  The Board 
notes that a "possible" connection or one based on 
"speculation" is too tenuous a basis on which to grant 
service connection.  The reasonable doubt doctrine requires 
that there be a "substantial" doubt and "one within the range 
of probability as distinguished from pure speculation or 
remote possibility."  38 C.F.R. § 3.102. 

The Board also acknowledges the October 2003 letter from a 
private physician indicating that undue stress, pain, and 
suffering are stimulants to death.  The private physician 
also opined that the veteran's service-connected disabilities 
were detrimental and were contributory causes of death.  
However, the law is clear that it is the Board's duty to 
assess the credibility and probative value of evidence, and 
provided that it offers an adequate statement of reasons and 
bases, the Board may favor one medical opinion over another.  
Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 
Vet. App. 488 (1995) (the Board may adopt a particular 
independent medical expert's opinion for its reasons and 
bases where the expert has fairly considered the material 
evidence of record).  The Board, of course, is not free to 
reject medical evidence on the basis of its own 
unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. 
App. 332 (1995).

After weighing the medical evidence, the Board finds the VA 
examiners' opinions to be more probative.  The October 2003 
private physician did not indicate that he had reviewed the 
veteran's claims file, and as such, his opinion rests on 
incomplete information.  In contrast, the VA examiners 
offered their opinions based on a review of all of the 
evidence, including the available service medical records, 
and offered a thorough rationale for the opinion reached that 
is clearly supported by the evidence of record.

The value of a physician's statement is dependent, in part, 
upon the extent to which it reflects "clinical data or other 
rationale to support his opinion." Bloom v. West, 12 Vet. 
App. 185, 187 (1999).  Thus, a medical opinion is inadequate 
when it is unsupported by clinical evidence. Black v. Brown, 
5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 
Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 
(1998) (medical opinions must be supported by clinical 
findings in the record and conclusions of medical 
professionals which are not accompanied by a factual 
predicate in the record are not probative medical opinions).  
In this case, and based on the foregoing, the Board attaches 
greater probative weight to the opinions from the April 2005 
and June 2005 VA examiners who had the benefit and review of 
all pertinent medical records and who provided a thorough 
rationale supported by the record.  Therefore, the Board 
concludes that the veteran's service-connected amputation of 
the lower third of the left thigh, osteoarthritis of the 
right knee with a baker's cyst, residuals of a fracture of 
the right radius, and residuals of a shell wound scar of the 
left scapula were not  principal or contributory causes of 
death.

In addition, the Board finds that the veteran did not have 
multiple myeloma that was causally or etiologically related 
to his military service.  The veteran's service medical 
records are negative for any complaints, treatment, or 
diagnosis of such a disorder, and he did not seek treatment 
for multiple myeloma until many decades following his 
separation from service.  Therefore, the Board finds that 
multiple myeloma did not manifest in service or for many 
years thereafter.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 
3.307, 3.309. 

With regard to the decades-long evidentiary gap in this case 
between active service and the earliest complaints of 
myeloma, the Board notes that this absence of evidence 
constitutes negative evidence tending to disprove the claim 
that the veteran had an injury or disease in service which 
resulted in chronic disability or persistent symptoms 
thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), 
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. 
Cir. 2002) (noting that the definition of evidence 
encompasses "negative evidence" which tends to disprove the 
existence of an alleged fact); see also 38 C.F.R. § 3.102 
(noting that reasonable doubt exists because of an 
approximate balance of positive and "negative" evidence).  
Thus, the lack of any objective evidence of continuing 
complaints, symptoms, or findings for many years between the 
period of active duty and the first complaints or symptoms of 
myeloma is itself evidence which tends to show that multiple 
myeloma did not have their onset in service or for many 
decades thereafter.

A prolonged period without medical complaint can be 
considered, along with other factors concerning a claimant's 
health and medical treatment during and after military 
service, as evidence of whether an injury or a disease was 
incurred in service which resulted in any chronic or 
persistent disability. See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000).  The Board must consider all the 
evidence including the availability of medical records, the 
nature and course of the disease or disability, the amount of 
time that elapsed since military service, and any other 
relevant facts in considering a claim for service connection. 
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 
2000) (holding that the absence of medical records during 
combat conditions does not establish absence of disability 
and thus suggesting that the absence of medical evidence may 
establish the absence of disability in other circumstances).  
Thus, when appropriate, the Board may consider the absence of 
evidence when engaging in a fact finding role. See Jordan v. 
Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing 
separately) (noting that the absence of evidence may be 
considered as one factor in rebutting the aggravation part of 
the section 1111 presumption of soundness).

In addition to the lack of evidence showing that multiple 
myeloma manifested during service or within close proximity 
thereto, the medical evidence of record does not link the 
veteran's cause of death to his military service.  In fact, 
there was no event, disease, or injury in service to which 
the veteran's death could be related. The appellant's 
assertions are the only evidence contained in the claims file 
showing that the veteran's cause of death was causally or 
etiologically related to his military service.  The appellant 
is not a medical professional, and therefore her beliefs and 
statements about medical matters do not constitute competent 
evidence on matters of medical etiology or diagnosis and 
absent a professional medical opinion linking a current 
disorder to service, service connection cannot be granted. 
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  
Therefore, the Board finds that a preponderance of the 
evidence is against the appellant's claim for service 
connection for the cause of the veteran's death.

Because the preponderance of the evidence is against the 
appellant's claim, the benefit of the doubt provision does 
not apply.  Accordingly, the Board concludes that service 
connection for the cause of the veteran's death is not 
warranted.


II.  Entitlement to Dependency and Indemnity Compensation 
(DIC) pursuant to the provisions of 38 U.S.C. § 1318.

The appellant also seeks VA DIC benefits, which may be 
awarded to a child or surviving spouse upon the service-
connected death of a veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 
3.5(a) (2006).  In pertinent part, however, 38 U.S.C.A. § 
1318 also authorizes the payment of DIC to a benefits-
eligible child or surviving spouse in cases where a veteran's 
death was not service-connected, provided that the veteran 
was in receipt of or "entitled to receive" compensation at 
the rate of a 100 percent (total) rating due to service-
connected disability for a period of at least five years from 
the date of his discharge or release from active duty, or for 
10 or more years immediately preceding his death.  This 
statute was implemented by VA at 38 C.F.R. § 3.22.  

The Board notes that there have been a number of court 
decisions in recent years that have resulted in some 
confusion in the processing of claims for DIC under 38 
U.S.C.A. § 1318.  It appears that some of the confusion has 
been cleared up by two decisions from the United States Court 
of Appeals for the Federal Circuit (Federal Circuit).  
However, a discussion of the evolution of the handling of 
such claims is pertinent to the understanding of why this 
claim must now be denied.

Interpreting 38 U.S.C.A. § 1318(b) and 38 C.F.R. § 
3.22(a)(2), the United States Court of Appeals for Veterans 
Claims (Court) found in 1997 that a surviving spouse can 
attempt to demonstrate that the veteran hypothetically would 
have been entitled to a different decision on a service 
connection claim, based on evidence in the claims folder or 
in VA custody prior to the veteran's death and the law then 
applicable or subsequently made retroactively applicable. See 
Green v. Brown, 10 Vet. App. 111, 118-19 (1997).  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): a revision of 38 C.F.R. § 3.22.  The 
final regulation established an interpretive rule reflecting 
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 (CUE) 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 (2004), 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:  "hypothetical entitlement" claims.

Thus, 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.  However, in 
Rodriguez v. Nicholson, No. 03-1276 (U.S. Vet. App. August 5, 
2005), the Court determined that the theory of hypothetical 
entitlement should be applied to claims pending the date of 
the change of 38 C.F.R. § 3.22, on January 21, 2000.  Prior 
to that time, the amended 38 C.F.R. § 3.22 could not be 
retroactively applied.  In this case, there was no claim 
pending for DIC on January 21, 2000.  Thus, hypothetical 
entitlement is not for application in this case.  Therefore, 
the only possible ways of prevailing on a 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.  Neither is present in this matter, and 
the appeal will therefore be denied.

In considering the evidence of record under the laws and 
regulations as set forth above, the Board concludes that the 
appellant is not entitled to DIC benefits.  The requirements 
of 38 U.S.C.A. § 1318 for an award of DIC benefits are 
clearly not met.  As previously discussed, the cause of the 
veteran's death is not service-connected.  Moreover, he was 
not in receipt of compensation at the 100 percent rate due to 
service-connected disability for a period of at least five 
years immediately after his discharge from active service or 
for 10 or more years prior to his death. Nor would he have 
been in receipt of such compensation in either case, but for 
clear and unmistakable error in a prior decision, which has 
not been established here.

First, the veteran plainly did not meet the durational 
requirement for a total disability rating in existence during 
his lifetime under 38 U.S.C.A. § 1318, in that he was not 
rated at 100 percent for at least the first five years after 
his discharge from service, and he was also not rated totally 
disabled for at least the last 10 years of his life.  The 
veteran had a combined evaluation of 80 percent effective 
from September 30, 1991, and he had a total disability rating 
based on individual unemployability due to service-connected 
disability effective from June 18, 1996.   He died in October 
2002, and as such, the time requirement for a total 
disability rating under 38 U.S.C.A. § 1318 has not been met.

The remaining issue, then, is whether either of the 
aforementioned duration requirements for a total rating so as 
to satisfy 38 U.S.C.A. § 1318 would have been met, but for 
clear and unmistakable error in a previous decision.  The 
appellant has not successfully pled clear and unmistakable 
error in any prior rating decision that would have entitled 
the veteran to a total rating.  Applicable regulations 
provide that a claim for benefits based on CUE in a prior 
final rating decision entails special pleading and proof 
requirements to overcome the finality of the decision by 
collateral attack because the decision was not appealed 
during the appeal period.  Fugo, 6 Vet. App. at 44; Duran v. 
Brown, 7 Vet. App. 216, 223 (1994).  In order for a claimant 
to successfully establish a valid claim of CUE in a final RO 
rating decision, the claimant must articulate with some 
degree of specificity what the alleged error is, and, unless 
the alleged error is the kind of error that, if true, would 
be CUE on its face, the claimant must provide persuasive 
reasons explaining why the result of the final rating 
decision would have been manifestly different but for the 
alleged error.  Luallen v. Brown, 8 Vet. App. 92, 94 (1995); 
Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 
162, 163 (1994) (noting that pleading and proof are two sides 
of the same coin; if there is a heightened proof requirement, 
there is, a fortiori, a heightened pleading requirement).  In 
this case, the appellant and her representative have not 
specifically alleged CUE.  Instead, they contend that the 
veteran was theoretically entitled to TDIU during the 10 
years prior to his death and cite to Green v. Brown, 10 Vet. 
App. 111 (1997).  However, as discussed above, VA has 
established that "hypothetical entitlement" is not a viable 
basis for establishing benefits under either 38 U.S.C.A. § 
1318.  Moreover, even if such contentions are liberally 
construed as a CUE claim with regard to a previous denial of 
a total rating, it appears that the appellant and her 
representative would be essentially requesting that the Board 
reweigh or reevaluate the evidence and reach a different 
conclusion.  However, such a disagreement with how the facts 
were weighed or evaluated is not clear and unmistakable 
error.  Russell v. Principi, 3 Vet. App. 310, 313 (1992).  As 
such, the appellant has not established a valid claim of CUE 
at this time.

As noted above, where the law and not the evidence is 
dispositive in a case, entitlement to the VA benefits sought 
must be denied due to the absence of legal merit. See Sabonis 
v. Brown, 6 Vet. App. 426, (1994).   Accordingly, as the 
veteran was not entitled to receive 100 percent disability 
for either at least five years after his departure from 
active service or for at least the 10 years prior to his 
death, the appellant is not entitled to DIC benefits under 38 
U.S.C.A. § 1318.


ORDER

Service connection for the cause of the veteran's death is 
denied.

Entitlement to Dependency and Indemnity Compensation (DIC) 
pursuant to the provisions of 38 U.S.C. § 1318 is denied.





____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs