Citation Nr: 1318095 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-08 413 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the severance of dependency and indemnity compensation (DIC) benefits based on helpless child status was proper. REPRESENTATION Appellant represented by: A.N., Agent WITNESS AT HEARINGS ON APPEAL Agent ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1942 to October 1945. He died on February [redacted], 2005. The appellant is the Veteran's son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California severing DIC benefits based on helpless child status. The claim was subsequently transferred to the RO in Roanoke, Virginia at the request of the appellant. The appellant's agent had a hearing on the appellant's behalf before the Board in September 2012 and the transcript is of record. The appellant's agent submitted new evidence, specifically a divorce decree confirming the appellant divorced his wife in 1996. The RO did not consider this new evidence, but the appellant's agent waived local jurisdictional review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant, who is the son of the Veteran, was married after November 1, 1990, specifically from 1993 to September 1996. 2. The appellant's marriage ended in September 1996 by decree of divorce and not due to annulment or otherwise declared void. 3. The grant of DIC benefits based on helpless child status was based on clear and unmistakable error in that there was an incorrect assumption of fact: that the appellant was never married. CONCLUSION OF LAW The grant of DIC benefits based on helpless child status was clearly and unmistakably erroneous and severance thereof was proper. 38 U.S.C.A. §§ 101, 103, 1310, 5109A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.55, 3.57, 3.105, 3.315, 3.356 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Inasmuch, however, as the propriety of the severance of DIC benefits involves a determination as to clear and unmistakable error (CUE), the VCAA is not for application. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Parker v. Principi, 15 Vet. App. 407 (2002). It is additionally noted that when severance of DIC benefits is warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that DIC benefits should be maintained. 38 C.F.R. § 3.105(h) (2012). Here, the appellant was provided the appropriate due process by an August 2010 notification letter of the rating decision that proposed to sever DIC benefits, and the August 2010 rating decision provided a clear explanation concerning the reasons for the proposed severance. Also, the RO previously issued a September 2008 letter explaining the evidence necessary to establish entitlement to DIC benefits based on helpless child status. Thus, the appellant was aware of what was necessary to establish DIC benefits, and was provided appropriate due process with regard to the need to submit evidence showing the severance should not take place. As such, no prejudice exists in adjudicating the appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board further notes that the law is dispositive in this case. Consequently, to this extent, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Severance of DIC Benefits Based on Helpless Child Status DIC benefits will be severed only where evidence establishes that a previous grant of benefits was clearly and unmistakably erroneous (the burden of proof being upon the Government). When severance of DIC benefits is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. See 38 C.F.R. § 3.105(h). In this case, all of the proper administrative actions were undertaken by the RO as described above. In part, an eligible child of a Veteran may be entitled to DIC at the time of the Veteran's service-connected death. 38 U.S.C.A. § 1310 (West 2002). A child must be "unmarried" and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A) (West 2002 & Supp. 2012); 38 C.F.R. § 3.57(a)(1) (2012). Under 38 U.S.C.A. § 103(e), marriage of a child shall not bar the furnishing of benefits if the marriage was void or had been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion. 38 U.S.C.A. § 103(e) (West 2002); 38 C.F.R. § 3.55(b)(1) (2012). On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage: (i) has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion. 38 C.F.R. § 3.55(b)(2) (2012) (emphasis added). The facts in this case are largely undisputed. The appellant is the Veteran's son and originally sought DIC benefits based on helpless child status indicating he became permanently incapable of self-support before reaching the age of 18 years old. Specifically, the appellant indicates he was in an accident at the age of 10 causing amputation of his left leg. The appellant was born on October [redacted], 1952. In 1963, he was in an accident that shattered his left shin. From 1963 to 1965, the appellant indicates he underwent two amputations and various procedures that left him permanently incapable of self-support. He claims he has always resided with his parents, and since their death, he is now left with no income. Based on the statements above, the RO originally granted the appellant's claim in a January 2009 rating decision because the Veteran's death was considered service connected under 38 U.S.C.A. § 1310. It later became known that the appellant was married from 1993 to 1996 and the marriage ended in divorce by decree in September 1996. Other evidence suggests the appellant attempted employment through the years with little or no success and was in receipt of Social Security Administration disability benefits from July 2001 (which were subsequently revoked after the appellant exceeded the income limit). An unappealed decision of the RO or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of CUE. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1400 (2012). The United States Court of Appeals for Veterans Claims (the Court) has defined CUE as "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 errors "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 v. Principi, 3 Vet. App. 310, 313-14 (1992). "To prove the existence of clear and unmistakable error as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existent 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 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) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). The Court has clarified in service connection cases that, although the same standards applied in a determination of CUE in a final decision are applied to a determination whether a decision granting service connection was the product of CUE for the purpose of severing service connection, § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Again, the RO severed the previous grant of DIC benefits based on helpless child status after learning the appellant was previously married, and had employment history raising doubt as to whether he was in fact permanently incapable of self-support. The appellant and his agent (who is also his sister) submitted various statements, testimony and evidence explaining the circumstances of the appellant's attempts at employment, sources of income, marriage, and even the level of disability through the years. Putting aside the appellant's employment history, it is undisputed the appellant was married after November 1, 1990, specifically from 1993 to 1996. The appellant and his agent indicate that, even while married the appellant resided with his parents and was never able to support his wife, which was partially responsible for the subsequent divorce. Since the evidence indicates the appellant was married from 1993 to 1996, the provisions of 38 U.S.C.A. § 103(3) and 38 C.F.R. § 3.55(b)(2), pertaining to a marriage of a child terminated prior to November 1, 1990, do not apply. Additionally, he does not allege, nor does the evidence of record show, that the marriage was rendered void, or annulled, by any appropriate judicial court. In fact, the claims folder contains the September 1996 divorce decree, confirming a divorce after November 1, 1990. Because of the appellant's disqualifying marital situation, the Board does not need to address the factors regarding whether he became permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. See 38 C.F.R. § 3.356(a) (2012). As indicated above, to properly sever benefits, the prior decision must be the product of CUE. That is, (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existent 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245. Here, the fact that the appellant was married from 1993 to 1996 was not known to the adjudicator at the time of the original January 2009 grant. Thus, the correct facts were not before the adjudicator at the time of the grant. This fact, additionally, is legally fatal to the appellant's claim as his prior marriage renders him an ineligible applicant for DIC benefits as a matter of law. In short, the law is dispositive in this case and renders the prior grant clearly and unmistakably erroneous. The clear error manifestly changes the outcome and it is undebatable. Reasonable minds cannot differ. Thus, the high evidentiary standard of CUE is met. The Board is sympathetic to the appellant's disability and situation. While the appellant and his agent raised various arguments with regard to his disability, his past unsuccessful attempts at employment, and his financial situation, the fact of the matter is his previous marriage renders him an ineligible applicant as a matter of law. For these reasons, the Board finds severance of DIC benefits on the basis of helpless child status was proper because the RO did not have all the correct facts before it at the time the benefits were granted. The fact that the appellant was married and divorced after November 1, 1990 renders him an ineligible applicant as a matter of law and, thus, the prior grant was clearly and unmistakably erroneous. ORDER Severance of DIC benefits based on helpless child status was proper; the appeal is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs