Citation Nr: 1332871 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-28 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether there was clear and unmistakable error (CUE) in the December 1996 Board decision finding that new and material evidence had not been received to reopen a claim for service connection for the cause of the Veteran's death. (A separate decision will be issued under a separate docket number for the appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for the cause of the Veteran's death.) REPRESENTATION Moving party represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service from October 1942 to April 1946 and from June 1948 to May 1975. He was a prisoner of war from July 1944 to April 1945, and he served in the Republic of Vietnam. The Veteran died in December 1993, and the moving party is his surviving spouse. The moving party also initiated an appeal from a November 2010 decision by a Department of Veterans Affairs (VA) Regional Office that granted service connection for the cause of the Veteran's death and assigned an initial effective date of June 23, 2010, which the moving party disputed. The instant decision will address a claim for CUE in a prior Board decision that denied service connection for the cause of the Veteran's death, which the Board has raised of its own motion pursuant to 38 U.S.C.A. § 7111 (2013). The separate appeal from an RO decision as to an earlier effective date is inextricably intertwined with the motion for CUE because a successful CUE claim is another way to obtain an earlier effective date. See Shields v. Brown, 8 Vet. App. 346, 350-51 (1995); Flash v. Brown, 8 Vet. App. 332, 338-40 (1995). Nevertheless, separate decisions are necessary because the motion concerning Board CUE is a matter within the Board's original jurisdiction and is not an appeal. See 38 U.S.C.A. §§ 7104, 7111. As discussed below, the CUE motion is granted. FINDINGS OF FACT 1. The Veteran died from laryngeal cancer in December 1993, the moving party's initial claim was received in February 1994, and the RO denied service connection for the cause of the Veteran's death in an April 1994 rating decision. 2. Cancer of the larynx was added to the list of presumptive service-connected diseases based on herbicide exposure effective as of June 9, 1994, while the moving party's appeal from the initial rating decision was still pending. 3. In a December 1996 decision, the Board denied an application to reopen a claim for service connection for the cause of the Veteran's death, finding that an April 1994 rating decision was final and no new and material evidence had been received. 4. The prior Board decision incorrectly applied the law at the time concerning finality of a rating decision and presumptive service connection based on herbicide exposure, and the outcome would have been manifestly different but for this error. CONCLUSION OF LAW The December 1996 Board decision was the product of CUE; and the criteria for an effective date of June 9, 1994, for the grant of service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1116, 1310, 5110(a), 7111 (West 1991 & 2002); 38 C.F.R. §§ 3.114, 3.156, 3.307(a)(6), 3.309(e), 3.400, 20.1400-20.1411 (1994, 1996, & 2013); 59 Fed. Reg. 29723 (June 9, 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that no notice or assistance is required as to this motion for CUE in a Board decision, as the decision must be based on the facts and law that were available at the time of the prior decision at issue. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Moreover, the Board's decision herein is fully favorable to the moving party, so no development is necessary. A prior Board decision is subject to revision or reversal based on CUE. For the purposes of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior Board decision based on CUE has the same effect as if the decision finding CUE had been made on the date of the prior decision. The Board may determine, sua sponte, whether it made CUE. A request for revision of a Board decision based on CUE shall be decided by the Board on the merits as the agency of original jurisdiction. 38 U.S.C.A. § 7111. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. Generally, either the correct facts as they were known at the time were not before the Board, or the statutory and regulatory provisions existing at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. Circumstances that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis, failure to fulfill the duty to assist, disagreement as to how the facts were weighed or evaluated, or the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403. To warrant service connection for the cause of a veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during service, or may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The pertinent presumptive regulations will be discussed below. Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, the Veteran died in December 1993. VA received the moving party's claim for survivor benefits on February 8, 1994, within one year of the Veteran's death. The death certificate listed the Veteran's cause of death as respiratory arrest due to hypopharyngeal cancer. This claim was initially denied in an April 1994 rating decision, but it was eventually granted in a November 2010 rating decision by the RO, based on a claim to reopen. The moving party appealed from the effective date of the award of service connection for the Veteran's death. With regard to the current CUE motion, the Board found in a December 1996 decision that no new and material evidence had been received to reopen a previously claim for service connection for the cause of the Veteran's death. For the reasons discussed below, the Board concludes that the Board committed CUE in the December 1996 decision in finding that the April 1994 rating decision became final, as well as in finding the evidence of record at the time did not warrant service connection for the cause of the Veteran's death on the merits. In December 1996, the Board noted that, in the April 1994 rating decision, the RO found that the Veteran's death could not be linked to any disease or injury in service because there was no evidence of respiratory disease or hypopharyngeal cancer during service, or chronic disease within the applicable presumptive period. The evidence at the time of the April 1994 decision consisted of service treatment records, the Veteran's death certificate, and his final hospitalization report in December 1993, as well as evidence of his POW status in 1944 and 1945. At the time of the Veteran's death, service connection was established for a heart disability rated as 30 percent disabling, as well as several orthopedic disabilities, hearing loss, lipomas, bronchitis, and residuals of hemorrhoidectomy, for a combined rating of 60 percent. The RO also found in the April 1994 rating decision that there was no direct relationship between these disabilities and the Veteran's death, and that these disabilities were not of such a progressive or debilitating nature to render the Veteran materially less capable of resisting the effects of his cancer. The moving party was notified of the RO's determination and filed a notice of disagreement. A statement of the case was issued on October 6, 1994, and the moving party did not subsequently file a substantive appeal (VA Form 9) within 60 days, or one year from the initial denial, to perfect her appeal the Board. The Board found in December 1996 that this rendered the April 1994 rating decision final. On October 14, 1994, ten days after the statement of the case, the RO received additional VA treatment records dated from July 1992 to December 1993. Instead of issuing a supplemental statement of the case, the RO issued another rating decision in April 1995 as to the question of whether new and material evidence had been received to reopen the claim, noting that a VA Form 9 had not been received. The RO found that the claim should not be reopened, which the moving party appealed to the Board, leading to the December 1996 Board decision now at issue. As pertinent to this CUE motion, the Board noted in December 1996 that these new VA treatment records showed that the Veteran was treated for cancer of the larynx from September 1992 until his death, but found that such records were not material. The Board reasoned that these reports did not relate to whether the Veteran's cause of death was related to his military service or to his service-connected disabilities, as they only reflected treatment for the Veteran's fatal cancer, with no relationship to service. It is this erroneous reasoning that rises to the level of CUE, as the Board did not properly apply then existing laws to the known facts of the case. Specifically, at the time of the April 1994 rating decision and the December 1996 Board decision (and currently), VA regulations provided that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See 38 C.F.R. § 3.156(b) (1993, 1996 & 2013). In other words, if such evidence is received, the claim will remain pending until it is readjudicated. At the times of the prior RO and Board decisions, new and material evidence was defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(b) (1993 & 1996). Here, the VA treatment records dated from September 1992 through December 1993 showing laryngeal cancer (as noted in the December 1996 Board decision) were received 10 days after the October 4, 1994, statement of the case. This was well within the appellate period of 60 days after the statement of the case, as indicated in the notice letter to the moving party at that time. Moreover, the records were constructively in VA's possession, as the decisions were issued after July 21, 1992. See Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95. At the time of the December 1996 Board decision, and effective since June 9, 1994, VA regulations provided that "[r]espiratory cancers (cancer of the lung, bronchus, larynx, or trachea)" were subject to presumptive service connection based on presumed herbicide exposure during service in the Republic of Vietnam from January 9, 1962, to May 7, 1975. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1994, 1996, & 2013); 59 Fed. Reg. 29723 (June 9, 1994) (expanding list of diseases subject to presumptive service connection based on herbicide exposure to include respiratory cancer including the larynx). The Board notes that this effective date was prior to the October 1994 statement of the case, and the moving party's initial claim for benefits remained pending on appeal. The Board observes that the regulations creating a presumption for service connection based on herbicide exposure were effective in February 6, 1991. Nevertheless, the list of diseases subject to this presumption did not include respiratory cancers or cancer of the larynx effective until June 9, 1994. See Supplement No. 7, B7-8 (May 25, 1993) (creating presumptions based on herbicide exposure in Vietnam, making amendments retroactively effective to February 6, 1991, but not including respiratory cancers or cancer of the larynx); 59 Fed. Reg. 5106 (February 3, 1994) (expanding list of diseases, but still not including respiratory or laryngeal cancer). As such, those amendments are inapplicable. The moving party's claim for service connection for the cause of the Veteran's death was eventually granted in a November 2010 rating decision based on presumptive service connection due to herbicide exposure during service in the Republic of Vietnam. This was based on an additional medical opinion opining that the VA treatment records showed laryngeal cancer leading to the Veteran's death. See November 2010 VA oncologist's report (stating that the Veteran available medical records clearly showed that the Veteran had an unresectable squamous cell carcinoma of the throat diagnosed in 1992, and by late 1993 he had cancer of the larynx and extending up into his hypopharynx to the base of his throat). The Board acknowledges that the Veteran's certificate of death reflects a cause of death of hypopharyngeal cancer, which is arguably not subject to presumptive service connection based on herbicide exposure. See 59 Fed. Reg. 341 (Jan. 4, 1994) and 61 Fed. Reg. 41442 (Aug. 8, 1996) (both stating that respiratory cancers other than lung cancer, and nasopharyngeal cancer, are not subject to presumptive service connection based on herbicide exposure); see also 77 Fed. Reg. 47924 (August 10, 2012) (expressly stating that cancers of the pharynx are not subject to presumptive service connection based on herbicide exposure). As noted above, however, effective since June 9, 1994, VA regulations provided that "[r]espiratory cancers (cancer of the lung, bronchus, larynx, or trachea)" are subject to presumptive service connection based on herbicide exposure. See 59 Fed. Reg. 29723 (June 9, 1994). Although the November 2010 VA oncologist's opinion cannot be considered for the purposes of CUE, the Board had already found in its December 1996 decision that the VA treatment records dated from September 1992 showed treatment for laryngeal cancer leading to the Veteran's death. Therefore, but for the Board's failure to apply then existing laws concerning presumptive service connection based on herbicide exposure, the moving party's claim should have been granted at that time. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Additionally, this means that VA treatment records dated from July 1992 forward constituted new and material evidence to warrant a grant of service connection for the cause of death of laryngeal cancer based on herbicide exposure. As those records were received prior to the expiration of the appellate period after the October 1994 statement of the case, the April 1994 rating decision denying the moving party's initial claim never became final. See 38 C.F.R. § 3.156(a)-(b). Again, but for the Board's failure to apply then existing laws concerning finality of rating decisions, the issue at that time would have been service connection for cause of death on the merits, not a claim to reopen. See 38 C.F.R. § 3.156(b). Accordingly, the December 1996 Board decision was the product of CUE for both of these reasons, based on failure to apply then existing laws to the facts at hand. This is an undebatable error, and not the result of weighing of evidence, that manifestly affected the outcome of the case. See 38 C.F.R. §§ 20.1403, 20.1411. The Board will now turn to the effective date that should have been applied upon a grant of service connection for the cause of death in the December 1996 decision. In general, the effective date of an award of dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Further, in cases involving service connection for cause of death after service, the effective date is the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of death; otherwise, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(c)(2). Here, the moving party's claim was received in February 1994, within one year of the Veteran's post-service death in December 1993. Nevertheless, the effective date for the award of service connection for the cause of the Veteran's death cannot be prior to the effective date of the amended law that allowed for presumptive service connection based on herbicide exposure for the cause of death of laryngeal cancer. See 38 C.F.R. § 3.114. As noted above, the moving party's initial claim remained pending from February 1994, as the April 1994 rating decision did not become final. Therefore, the proper effective date is June 9, 1994, the later of the date on which the moving party's claim was received (in February 1994) and the date on which entitlement arose (by application of the presumption to the cause of death). See 38 U.S.C.A. §§ 1310, 5110(a); 38 C.F.R. §§ 3.114, 3.312, 3.400. ORDER The December 1996 Board decision was the product of CUE, and the motion is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs