Citation Nr: 1047340 Decision Date: 12/20/10 Archive Date: 12/22/10 DOCKET NO. 04-24 575A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318, based on a claim of clear and unmistakable (CUE) error in June 1993, and November 1995, rating actions that respectively awarded an increased rating for the Veteran's back disability and a total disability rating based on individual unemployability (TDIU), effective April 1, 1993. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from November 1962 to January 1967. The Veteran passed away in April 17, 2002. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2003 rating decision. In this case, as will be discussed in the body of the decision, from a plain reading of the appellant's contentions it is clear that in asserting a CUE was made, she was referring to a June 1993 rating decision as well as to a November 1995 rating decision. As such, the issue has been recaptioned above to take this into account. FINDINGS OF FACT 1. At the time of the June 1993 rating decision, the evidence clearly and unmistakably showed that the Veteran's lower back disability met the criteria for a 60 percent rating, effective from April 9, 1992, and that he was unemployable due to his service connected back disorder from that date. 2. At the time of his death April 17, 2002, but for CUE, the Veteran would have been rated at 100 percent for a period of more than 10 years. CONCLUSIONS OF LAW 1. Clear and unmistakable error in the June 1993 rating decision has been shown; a 60 percent rating should have been awarded for the Veteran's lower back disability, effective April 9, 1992. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a), 3.400, 4.71a, Diagnostic Code 5293 (1992). 2. Clear and unmistakable error in the November 1995 rating decision has been shown; TDIU benefits should have been awarded effective from the date of the receipt of the Veteran's claim, April 9, 1992. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a), 3.400 (1992). 3. Criteria for an award of DIC benefits under the provisions of 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. §§ 1318, 7105 (West 2002); 38 C.F.R. § 3.22 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Veteran passed away on April 17, 2002 from causes that were determined in an October 2006 Board decision to be unrelated to the Veteran's time in military service. As such, service connection for the cause of the Veteran's death was denied. However, the appellant has also pursued a claim for DIC (Death and Indemnity Compensation) under 38 U.S.C.A. § 1318. Specifically, she has argued that the Veteran was unemployable on account of his service connected lower back disability at the time he filed his first claim for TDIU. That claim was received on April 9, 1992. The appellant has argued that if April 9, 1992 was the effective date for the establishment of TDIU, then the Veteran would have been service connected at 100 percent for ten continuous years at the time of his death in April 2002 and she would therefore meet the criteria for DIC under 38 U.S.C.A. § 1318. The relevant evidence in this case shows that on April 9, 1992, the Veteran submitted an informal claim for an increased rating for his service connected back disability, and TDIU benefits. After reviewing VA records dated between December 1991 and July 1992, together with information from the Veteran's employer, in an August 1992 rating action, the RO granted the Veteran an increased evaluation for his back disability from 20 percent to 40 percent, effective from December 1991, but denied entitlement to TDIU benefits. In September and October 1992 correspondence, the Veteran expressed his disagreement with the RO's August 1992 decision. Thereafter, additional VA records were obtained, including those from a September 1992 hospitalization where the Veteran underwent a discectomy, and in a January 1993 rating action, the RO increased the schedular evaluation of the Veteran's back disability to 40 percent effective from December 1991, assigned a temporary 100 percent evaluation for convalescence to run from September 1992 to April 1, 1993, and deferred any further decision regarding TDIU benefits until the convalescent period had expired. In the interim, the RO issued a statement of the case to the Veteran in January 1993 regarding TDIU benefits, and the Veteran perfected an appeal with respect to that issue in March 1993. Following VA examination of the Veteran in April 1993, the RO increased the schedular evaluation of the Veteran's low back disability to 60 percent, (the highest schedular evaluation), effective from April 1, 1993, but continued the denial of TDIU benefits. The Veteran continued to pursue that appeal, and in a November 1995 rating decision, TDIU benefits were granted, effective from April 1, 1993. The basis for this grant was the impairment caused by the Veteran's back disability. The Veteran did not appeal this decision and it became final. An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. However, where evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C.A. § 7105(c); 38 U.S.C.A. § 3.105(a). There is a three-prong test for determining whether a prior determination involves CUE: (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 manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet.App. 310 (1992). CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). The appellant and her representative have recognized that in order for the appellant to become eligible for DIC, it must be shown that clear and unmistakable error was made in the effective date that was assigned for TDIU. Essentially, as was discussed at the appellant's hearing before the Board, the evidence must show that the effective date for TDIU benefits must be from April 9, 1992, and to have assigned any later date was CUE. Because a TDIU rating is a component of an increased rating claim, the June 1993 rating action that assigned a 60 percent evaluation from April 1, 1993, is also at issue here. At that time, applicable criteria provided for a 60 percent rating for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. Effective dates for award of benefits was controlled by 38 C.F.R. § 3.400, which essentially provided that an award of increase shall be from the later of the date of claim or date entitlement arose. TDIU benefits were assigned when the schedular rating is less than total when the disabled Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). For the time in question, the Veteran's only service connected disability was his back disorder. At the time of the June 1993 rating action, the evidence included VA records dated in December 1991, where the Veteran presented for lower back pain. The doctor noted that the Veteran had pain in his back that radiated into his right leg and which caused numbness in both legs. Movement increased the pain, and the examiner observed that the Veteran stood with great difficulty, had paravertebral muscle spasms, straight leg raises that were positive at 20 degrees, and decreased reflexes. Complete bed rest was ordered. February 1992 records showed the Veteran was unable to work since November 1991, and that he had increasing numbness. Bed rest as needed was ordered, and the Veteran was referred to the pain clinic. March 1992 records reflected the Veteran had lost over 100 days of work the prior year due to his back pain, and in April 1992, neurologic surgery was being considered. A May 1992 MRI revealed a recent right herniation at L2-3, and August 1992 records reflect the conclusion surgery was needed to relieve the Veteran's acute symptoms. As indicated above, that surgery was performed in September 1992, and a follow-up hospitalization for a period of 3 days occurred in November 1992, where it was noted the Veteran's pain had not improved following the surgery, and that he experienced numbness over the right foot. There also was weakness in the lower extremities. VA examination conducted in April 1993, noted the pain was worsening, that the Veteran walked with a cane, and that he "cannot work anymore." Also of record at the time of the 1993 decision, were documents showing that the Veteran had been terminated by his previous two employers on account of his back disability. As indicated above, the Veteran was assigned a 100 percent evaluation from the date of the surgery until April 1, 1993, and then a 60 percent schedular evaluation from April 1, 1993. Reviewing the rating criteria again, it is clear that the evidence that was of record at the time of the June 1993 rating decision both supported and mandated the assignment of a 60 percent rating. There was unmistakable evidence of pronounced intervertebral disc syndrome. This was manifested by medical evidence dated as early as in December 1991 showing sciatic neuropathy with characteristic pain, demonstrable muscle spasm, neurological findings appropriate to the site of the diseased disc, as well as little intermittent relief. Only the failure to apply the correct criteria to the undisputed facts could result in a rating of less than 60 percent for the Veteran's back disability. Thus, but for this error the Veteran would have been rated as 60 percent disabled due to his back disorder, effective from at least his April 9, 1992, date of claim. Likewise, at that time the evidence unmistakably demonstrated the Veteran was unemployable due to his service connected back disability. He lost 100 days of work in 1991 due to his back disability, he was terminated from his employment in December 1991 due to his back disability, and the surgery that was performed in 1992 did not improve his symptoms. Indeed, as the RO also appears to have concluded, the symptoms actually worsened following the surgery. Further, there was no evidence any other disability had this sort of impact on the Veteran's employability, a fact also essentially conceded in the November 1995 decision that granted TDIU benefits. Thus, the failure to award a 60 percent schedular evaluation for the Veteran's low back disability, from April 9, 1992, was a clear and unmistakable error, and the November 1995 decision that only awarded TDIU benefits from April 1993, rather than April 1992, was likewise erroneous. Turning to the criteria for DIC benefits, VA will pay DIC benefits to the surviving spouse of a deceased Veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling, even though the Veteran's service connected disability did not directly cause his death if one of the following criteria is met: 1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; 2) the disability was rated by the VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or 3) 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). In this case, as was established above, the Veteran's 60 percent schedular evaluation and the award of TDIU should have been granted as of the date his claim was received, April 9, 1992. The Veteran passed away more than ten years after that time, April 17, 2002. As such, given the determination in this decision that April 9, 1992 is the correct effective date for the grant of TDIU, the Veteran may be considered to have had service connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding his death. Therefore the criteria for DIC benefits under 38 U.S.C.A. § 1318 have been met, and the appellant's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER CUE being found in the June 1993 rating action, it is revised to reflect that a 60 percent rating for the Veteran's lower back disability is assigned, effective from April 9, 1992. CUE being found in the November 1995 rating decision, it is revised to reflect an award of TDIU benefits, effective from April 9, 1992. DIC under 38 U.S.C.A. § 1318 is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs