Citation Nr: 1752704 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-13 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1318, to include on the basis of clear and unmistakable error (CUE) in a June 2000 rating decision that assigned an effective date of February 8, 2000 for a 100 percent rating for lymphatic filariasis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to November 1945. The Veteran died in December 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The RO in Milwaukee, Wisconsin has jurisdiction over the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2012). Regarding the procedural history of this case, the appellant perfected an appeal of both a claim seeking service connection for the cause of the Veteran's death and a claim seeking entitlement to DIC benefits per 38 U.S.C.A. § 1318; however, the RO only certified the issue of entitlement to service connection for the cause of the Veteran's death to the Board, and the Board accordingly remanded this issue for development in October 2015. The Board thereafter issued a decision in July 2017 denying service connection for the cause of the Veteran's death, and also remanding the previously perfected issue of entitlement to DIC benefits per 38 U.S.C. § 1318, but referring to the issue as a motion to revise a prior rating decision that serves as a bar to such benefits on the basis of CUE. The Board has rephrased this issue as reflected on the title page in order to more closely mirror the issue as it was perfected to the Board. As the requested development has been completed, the claim has now been returned to the Board for further appellate review. FINDINGS OF FACT 1. At the time the RO adjudicated the June 2000 rating decision assigning a February 2000 effective date for the 100 percent rating for service-connected filariasis, the correct facts, as they were known at the time, were before the adjudicator; the statutory or regulatory provisions extant at that time were correctly applied; and there was no undebatable error in how the facts were weighed or evaluated. 2. The Veteran's 100 percent rating for service-connected filariasis was in effect for less than ten years at the time of his death in December 2009. CONCLUSION OF LAW 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 2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that although the Veteran had only been in receipt of a 100 percent rating for his service-connected filariasis (a parasitic infection that the Veteran presumably incurred during his World-War II era service in the South Pacific) for less than 10 years at the time of his death in December 2009, this award should have been in effect for at least 10 years at the time of his death, thereby qualifying her for DIC benefits, pursuant to 38 U.S.C.A. § 1318. She further asserts that the June 2000 rating decision's assignment of an effective date of February 2000 for the total rating for his service-connected filariasis was the product of clear and unmistakable error (hereinafter referred to as CUE), as an earlier effective date was warranted based on the evidence then of record. A surviving spouse is entitled to DIC compensation when, as is relevant in the issue remaining on appeal, the veteran, at the time of death, was in receipt of or entitled to receive compensation for a service-connected disability that was continually rated totally disabling for a period of ten years or longer immediately preceding death. 38 U.S.C.A. § 1318 ; 38 C.F.R. § 3.22. For purposes of entitlement to DIC benefits per 38 U.S.C.A. § 1318, a surviving spouse may establish eligibility for such benefits if the veteran would have been in receipt of a total rating for ten years prior to the time of his death but for clear and unmistakable error in a decision on a claim filed during his lifetime. 38 C.F.R. § 3.22 (b)(1). The Board notes that an appellant seeking DIC benefits may not raise a freestanding CUE claim. See generally Haines v. West, 154 F. 3d 1298 at 1301-02 (Fed. Cir. 1998); see also Rusick v. Gibson, 760 F.3d 1342, 1344 (Fed. Cir. 2014). The appellant may, however, raise such an allegation as a theory of entitlement in support of her DIC claim. A prior final rating decision contains CUE where: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at that time were not correctly applied; (2) the error is "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) such determination of CUE is based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); 38 C.F.R. § 20.1403. At the outset of this analysis, the Board first notes that the June 2000 rating decision at issue is indeed final, as the Veteran did not initiate appeal of the decision, nor submit evidence relevant to the claim within one year of its issuance. However, the Board finds that the RO's assignment of an effective date of February 2000, the date of the VA examination that noted possible evidence of active filariasis, was not the product of CUE. As reflected in the June 2000 rating decision, the RO awarded a 100 percent rating for active filariasis based on the findings of a February 2000 VA examination, in which the examiner noted that the Veteran could have active filariasis given certain elevated blood serology levels; thus, the RO resolved all reasonable doubt in the Veteran's favor, and awarded a 100 percent rating commensurate with the date of this February 2000 VA examination. The appellant does not assert that the RO applied the improper law to this case, or that the improper facts were considered; rather, she states that as VA treatment then of record reflected similar blood serology readings recorded earlier in the rating period, the RO should have awarded an effective date commensurate with those earlier serology results. However, the Board finds that the appellant's argument is tantamount to an allegation that the RO improperly weighed the facts then of record by determining that earlier medical evidence did not provide a basis for concluding that the Veteran's filariasis was indeed active, thereby warranting a 100 percent rating. As referenced above, an argument that facts were improperly weighed is not tantamount to CUE. Moreover, as the June 2000 rating decision reflects that the RO cited the February 2000 findings that the Veteran "could" have active filariasis, and as no earlier medical evidence then of record definitively established active filariasis, the Board concludes that the failure to award an effective date prior to February 2000 could not be characterized as undebatably erroneous. In that regard, while medical evidence prior to the February 2000 VA examination includes similar serology findings to those noted during the 2000 examination, those findings were not determinative of filariasis, as noted by the 2000 examiner. Moreover, while a 1998 letter from the Veteran's private treating physician notes that the Veteran had symptoms related to his history of filariasis, this notation is not a conclusion that the Veteran had active filariasis. Furthermore, pursuant to the Board's 2017 remand directives, a retrospective medical opinion was obtained regarding whether the evidence of record at the time of this June 2000 rating decision definitively established that the Veteran's filariasis was active prior to February 2000, so as to warrant the assignment of an earlier effective date. However, when rendering this requested opinion in August 2017, the VA physician stated that the Veteran did not have active filariasis when he was awarded his related 100 percent rating effective as of February 2000. In support of this opinion, the physician noted that the parasite that causes an active filariasis infection does not live beyond 10-15 years, with an average lifespan of 5 years, and that these parasites do not reproduce inside the human body. Thus, the examiner essentially concluded that it would be medically impossible for the Veteran to have an active service-related filariasis infection beyond 1960, or fifteen years after service. Accordingly, the VA physician concluded that based on evidence that the Veteran had not had active filariasis at any point during the applicable rating period, the failure to assign an earlier effective date of a 100 percent rating for active filariasis was not undebatably erroneous. Given that the foregoing evidence fails to establish that the June 2000 rating decision considered the incorrect facts or law or applied the facts to the law in an undebatably erroneous manner, the Board finds that the failure to award an effective date prior to February 2000 for a total rating for active filariasis was not CUE. Given this conclusion, the Veteran was not entitled to such compensation for at least ten years prior to his death in December 2009; accordingly, the appellant is not entitled to related DIC compensation pursuant to 38 U.S.C.A. § 1318. ORDER Entitlement to DIC compensation pursuant to 38 U.S.C.A. § 1318, to include on the basis of CUE in a June 2000 rating decision that assigned an effective date of February 8, 2000 for a 100 percent rating for lymphatic filariasis, is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs