Citation Nr: 1333807 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-23 579 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a Board of Veterans' Appeals decision dated August 10, 2011, that denied entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318. REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from August 1946 to May 1949. He died in January 1987. The appellant, the Veteran's surviving spouse, is the Moving Party. This matter comes before the Board of Veterans' Appeals (Board) on a motion filed by the Moving Party in May 2012. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. In a decision dated August 10, 2011, the Board denied entitlement to DIC pursuant to 38 U.S.C. § 1318. 2. The Moving Party has not alleged any error of fact or law in the foregoing decision 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. CONCLUSION OF LAW A valid claim of CUE in the Board's August 10, 2011, decision denying entitlement to DIC pursuant to 38 U.S.C. § 1318, has not been raised. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 1404 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As an initial matter, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant CUE motion for the reason that a CUE motion is not a claim or an application for VA benefits and therefore duties associated with such claims or applications are inapplicable. See 38 C.F.R. § 20.1411(c), (d) (2013); see also Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001). Legal Criteria Under 38 U.S.C.A. § 7111 (West 2002), the Board has been granted the authority to revise its prior decisions on the grounds of CUE. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411 (2013). The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged clear and unmistakable error or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 20.1404(b). The determination of whether a prior Board decision was based on CUE must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). See also Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). The benefit-of-the-doubt rule of 38 U.S.C.A. § 5107 (West 2002) does not apply to a Board decision on a motion to revise a Board decision due to CUE. 38 C.F.R. § 20.1411(a) (2013). The law in effect at the time of the August 2011 Board decision is discussed below. 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 a 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 prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318, 38 C.F.R. § 3.22 (2011). Under the version of 38 C.F.R. § 3.22 applicable at the time of the August 2011 Board decision, DIC benefits may not be awarded based on "hypothetical entitlement" to a total disability rating for ten years preceding the Veteran's death. See Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008); Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). Factual Background and Analysis In an August 2011 decision, the Board denied entitlement to DIC under 38 U.S.C.A. § 1318, as there was no legal basis for entitlement. It was noted that the Veteran was not rated by VA as totally disabled for a continuous period of at least 10 years immediately preceding death; was not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death; and was not shown to be a former prisoner of war. The Board also acknowledged that to the extent that that the appellant's assertions could be construed as a claim based on "hypothetical entitlement," she was barred as a matter of law under 38 C.F.R. § 3.22. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In a May 2012 statement, the Moving Party, asserted that the August 2011 Board decision warranted revision on the grounds of CUE, as the Board erred in finding that the Veteran was not evaluated as totally disabled for 10 continuous years immediately preceding death. She raised the same argument in support of her claim that the Veteran should have been rated 100 percent from 1965 until his death in 1987, meeting the criteria for entitlement to DIC under 38 U.S.C.A. § 1318. She further indicated that she disagreed with the current version of 38 C.F.R. § 3.22 that DIC payments may not be awarded based on hypothetical entitlement to a total disability rating for 10 years preceding the Veteran's death. In this case, the Board finds that the Moving Party's arguments are without merit. As an initial matter, the Moving Party's disagreement with how the Board weighed and evaluated the lay and medical evidence does not raise a valid claim of CUE. 38 C.F.R. § 20.1403(d)(3). The Moving Party has also not alleged any error of fact or law that constitutes CUE. The Moving Party has not identified any error of the Board in the August 2011 decision that, had it not been committed, would have compelled a different decision. Thus, the Board finds no CUE in the August 2011 decision and the motion must be dismissed. ORDER The motion to revise or reverse the August 10, 2011, Board decision denying entitlement to DIC pursuant to 38 U.S.C. § 1318 based on CUE is dismissed. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs