Citation Nr: 1003591 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 09-39 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION Appellant is the surviving spouse of the Veteran who is reported to have had active service from October 1945 to July 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. At that time, the RO denied claims for service connection for the cause of the Veteran's death and entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the time of the Veteran's death in January 2009, he was service-connected for right ear hearing loss which, together with the Veteran's nonservice-connected left ear, permitted the assignment of a 100 percent schedular rating with special monthly compensation effective from April 9, 2004. 2. The death certificate reflects that the immediate cause of the Veteran's death was aspiration pneumonia and a swallowing disorder, with other significant conditions contributing to death identified as chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), diabetes mellitus (DM), and hypertension (HTN). 3. The medical evidence establishes that the pneumonia, swallowing disorder, COPD, CAD, DM, and HTN that caused or contributed to the death of the Veteran were not incurred in service, and establishes that service-connected disability, or treatment thereof, did not cause, contribute to, or accelerate death. 4. The appellant filed a claim for DIC under the provisions of 38 U.S.C.A. § 1318 in February 2009. 5. The Veteran was not continuously rated totally disabled due to service-connected disability, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding 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. 6. The Veteran was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2009). 2. The criteria for entitlement to DIC 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 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)), imposes obligations on the VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (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; and (3) that the claimant is expected to provide. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for DIC benefits, section 5103(a) 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 at the time of his or her death; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. Here, the duty to notify was satisfied prior to the initial unfavorable decision on the claims for cause of death and DIC under 38 U.S.C.A. § 1318 by way of a February 2009 letter that fully addressed all notice elements. Moreover, pursuant to Hupp, appellant was advised that the Veteran was service connected for hearing loss at the time of death, and that it was therefore necessary for her to establish by evidence such as treatment records that this service-connected disability caused or contributed to the cause of death, or that a condition causing the Veteran's death had its onset in service. A similar letter was also provided to appellant in June 2009, followed by readjudication in the October 2009 statement of the case. The Board further finds that there is evidence that appellant understood the import of this correspondence, as appellant has placed more emphasis on her claim under 38 U.S.C.A. § 1318 since the record does not reflect any evidence that hearing loss contributed to the Veteran's death or that a condition contributing to death had its onset during service. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent post-service treatment records and providing an opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are VA examination and treatment records. While there are no treatment records relating to the conditions that contributed to the Veteran's death, since there is no dispute that the Veteran suffered from these conditions and that they contributed to his death, the Board finds that remand to obtain these records would only serve to confirm what is already indicated on the death certificate. The appellant has also not indicated any intention to provide additional evidence in support of her claims, and has not requested that VA assist her in obtaining any other evidence. While the Board has considered remanding the claim for an etiological opinion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a medical examination or opinion under the provisions of 38 U.S.C.A. § 5103A(d) is not required in every DIC claim. See Delarosa v Peake, 515 F.3d 1319 (Fed. Cir. 2008). In this case, there is no indication of any existing evidence to establish that service-connected hearing loss contributed to the cause of the Veteran's death or that a condition that contributed to cause death had its onset during active service, and no reasonable possibility that any additional assistance would aid the appellant in substantiating such a claim. Consequently, the Board finds that remand for a review of the record and etiological opinion as to this claim is not warranted. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F. 3ed 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Entitlement to Service Connection for Cause of Death The Board has first considered whether the evidence of record supports the conclusion that service-connected hearing loss caused or contributed to the cause of death, or that a condition that caused or contributed to the Veteran's death had its onset in service. The law provides DIC for a spouse of a veteran who dies from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). The death of a veteran will be considered as having been 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). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). If the disorder is a chronic disease, service connection may be granted if it becomes manifest to a degree of 10 percent within the presumptive period; the presumptive period for cardiovascular disease and diabetes mellitus is one year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Additionally, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2009). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). None of the Veteran's service treatment records discloses any reference to pneumonia, swallowing disorder, COPD, CAD, DM, or HTN. At the time of the Veteran's death in January 2009, he was service-connected for right ear hearing loss which, together with the Veteran's nonservice-connected left ear, permitted the assignment of a 100 percent schedular rating with special monthly compensation effective from April 9, 2004. The record reflects that the Veteran was 83 years old when he died in January 2009. A death certificate dated in January 2009 indicates that the Veteran died of aspiration pneumonia and a swallowing disorder, with other significant conditions contributing to the Veteran's death identified as COPD, CAD, DM, and HTN. There is no medical evidence indicating that the Veteran's pneumonia, swallowing disorder, COPD, CAD, DM, or HTN were present in service or manifest within a period of one year thereafter. There is no medical evidence that suggests, much less indicates, that pneumonia, a swallowing disorder, COPD, CAD, DM, or HTN had been present during service or within the one year presumptive period after separation for CAD, DM, and HTN. Although the appellant has pursued a claim that such conditions had their onset in service or that they were somehow related to the Veteran's hearing loss, she herself has not specifically alleged that these conditions were present in service or within one year of service. In summary, the Board finds that the evidence of record establishes that the Veteran's aspiration pneumonia, swallowing disorder, COPD, CAD, DM, and HTN had their onset many years after service. No physician or other medical care provider has indicated on the record that the Veteran's pneumonia, swallowing disorder, COPD, CAD, DM, or HTN were present during service or within one year thereafter. No physician or other medical care provider has likewise indicated on the record that any such disorder was caused or aggravated by the Veteran's service-connected hearing loss. Accordingly, the Board has no alternative but to conclude that a preponderance of the evidence is against the claim for service connection for cause of the Veteran's death. III. Entitlement to DIC under 38 U.S.C.A. § 1318 The appellant additionally seeks entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. The Veteran was discharged from service in July 1946 and died in January 2009. At the time of the Veteran's death, he was service-connected for right ear hearing loss which, together with the Veteran's nonservice-connected left ear, permitted the assignment of a 100 percent schedular rating with special monthly compensation effective from April 9, 2004. Prior to the filing of his claim for an increased rating in April 2004, the Veteran's right ear hearing loss had been rated as noncompensable since January 1998, and prior thereto, had been rated as 10 percent disabling since February 1993. Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. 38 U.S.C.A. § 1318. The total rating may be either schedular or based upon unemployability. Id. In essence, 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; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision, which were not previously considered by VA, provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are clearly not met. First, the Veteran plainly did not meet the durational requirement for a total disability rating under 38 U.S.C.A. § 1318. As noted above, the Veteran was discharged from service in July 1946 and died in January 2009. Also noted above, he was not granted a 100 percent schedular rating until April 9, 2004, the date of the filing of his claim for an increased rating. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death. Additionally, the Veteran was not a former POW. The next issue is whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C.A. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran's lifetime. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of the assignment of disability ratings, 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. As stated by the Court, for CUE to exist: (1) either the correct facts, as they were known at that 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 the time were incorrectly applied; (2) the error must be undebatable and 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 v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Court has consistently stressed the rigorous nature of the concept of CUE. "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). CUE consists of "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 v. Principi, 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 VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist the veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that in order to be CUE, the error must be of a type that is outcome- determinative. See Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). The record reflects that the appellant has claimed CUE in the September 2004 rating decision's assignment of April 9, 2004 as the effective date for the Veteran's 100 percent schedular rating. She has stated that she believes that the Veteran was 100 percent disabled for several years prior to April 2004, as "VA's own records show many irregularities in their testing." See Written statement from daughter, dated February 27, 2009. She argues that there was "CUE for an earlier effective date." See Written statement from representative, dated May 21, 2009. The appellant appears to rely on correspondence from VA in or around 1995 and 1998 concerning the status of the Veteran as 100 percent disabled. The Board does not find that the assignment of the effective date of April 9, 2004, for the 100 percent rating constituted CUE. For an increased rating claim, the effective date for an award is the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim is received within a period of one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2009). Here, the Veteran submitted a claim for an increased rating on April 9, 2004. Until the examination in May 2004 confirmed that his right ear hearing loss was ratable as 10 percent disabling, there was no basis for entitlement to a higher rating for both ears. Thus, it was not ascertainable that an increased disability had occurred at any point prior to the filing of the claim on April 9, 2004. Thus, the date of receipt of claim was the appropriate effective date and there was no CUE. 38 C.F.R. § 3.105(a) (2009). As noted above, the appellant alternatively relies on correspondence from VA in or around 1995 and 1998 concerning the status of the Veteran as 100 percent disabled. However, while these communications could have been confusing to the Veteran, the record indicates that he was not receiving any benefits between January 1998 and April 2004, and that he actively pursued claims for increased ratings in January 1997 and April 2004, actions that clearly evidenced an understanding that he had not yet been determined to be totally disabled for VA compensation purposes as of both January 1997 and April 2004. In sum, the Board finds that the basic threshold criteria for establishing entitlement to DIC benefits under 38 U.S.C.A. § 1318 are not met. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). In denying the appellant's 38 U.S.C.A. § 1318 DIC benefits claim, the Board does not wish in any way to diminish the Veteran's years of service. Although sympathetic to her claims, the Board is without authority to grant them on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs