Citation Nr: 1735015 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 16-17 489 ) DATE ) ) On appeal from the Department of Veterans Affairs St. Paul Pension Center, St. Paul, Minnesota THE ISSUE Entitlement to an effective date prior to August 1, 2013 for a grant of Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death, to include on the basis of clear and unmistakable error in a November 1977 rating decision. REPRESENTATION Appellant represented by: Californa Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active duty service from February 1954 to June 1974. He died in July 1977. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 decision by the St. Paul Pension Center, St. Paul, Minnesota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in July 1977. The certificate of death states that the cause of death was coronary artery occlusion due to or as a consequence of arteriosclerotic heart disease. 2. In an unappealed rating decision, dated in November 1977, the RO denied the appellant's claim for service connection for the cause of the Veteran's death. 3. In December 2014, the RO awarded Dependency and Indemnity Compensation to the appellant, based on service connection for the cause of the Veteran's death, and assigned an effective date of August 1, 2013. 4. The RO's November 1977 decision, which denied a claim for service connection for the cause of the Veteran's death, was not based on CUE as it represented an application of the known facts to the law then in existence; the factual evidence and competent medical opinion of record did not show that the Veteran's cause of death was related to his service. 5. The effective date of legislation establishing presumptive service connection for ischemic heart disease (to include atherosclerotic cardiovascular disease and coronary artery disease) in veterans presumed to have been exposed to Agent Orange is August 31, 2010. CONCLUSION OF LAW The criteria for an effective date prior to August 1, 2013, for the grant of dependency and indemnity compensation (DIC) benefits, based on claim that there was clear and unmistakable error in RO rating decision dated in November 1977, have not been met. 38 U.S.C.A. §§ 5107 , 5110(b)(2), 7105 (West 2014); 38 C.F.R. §§ 3.102, 3.104, 3.105(a), 3.114, 3.159, 3.400(b)(2), 3.816 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant argues that an effective date prior to August 1, 2013 is warranted for the grant of service connection for the cause of the Veteran's death, and the derivative grant of DIC, based on her claim that there was clear and unmistakable error (CUE) in a November 1977 RO rating decision. The Board parenthetically notes that grants of DIC benefits under 38 U.S.C.A. § 1310 are based on grants of service connection for the cause of a veteran's death, and that the terms "DIC" and "service connection for the cause of death" are often used interchangeably in discussing such DIC effective dates. The relevant history of this claim is as follows: The Veteran is shown to have had service in the Republic of Vietnam between June 1968 and January 1969. The Veteran died in July 1977. The certificate of death states that the cause of his death was coronary artery occlusion due to or as a consequence of arteriosclerotic heart disease. See also August 1977 coroner's report (same). In August 1977, the appellant filed a claim for DIC. In November 1977, the RO denied the claim, which it framed as a claim for service connection for the cause of the Veteran's death. In February 1978, a timely notice of disagreement was received; no specific argument was presented. That same month, a statement of the case was issued. See 38 C.F.R. § 20.201. In March 1978, a supplemental statement of the case was issued. In April 1978, the RO sent the appellant a letter notifying her that she had until November 1978 to perfect her appeal. However, a timely appeal was not received, and the RO's decision became final. See 38 U.S.C.A. § 4005(c) (1976); 38 C.F.R. §§ 3.105, 19.118, 19.153 (1977). On August 6, 2014, the appellant filed to reopen the claim. In December 2014, the RO awarded Dependency and Indemnity Compensation to the appellant, based on a grant of service connection for the cause of the Veteran's death, and assigned an effective date of August 1, 2013. In October 2015, a timely notice of disagreement was received in which the appellant asserted that the correct effective date should be the date of the Veteran's death. She argued that the RO's November 1978 decision, which denied her claim of service connection for the cause of the Veteran's death, was based on clear and unmistakable error. She asserted, in essence, that the Veteran served in Vietnam and is therefore presumed to have been exposed to Agent Orange, that the Veteran is shown to have died from arteriosclerotic heart disease, and this condition should have been deemed presumptively due to exposure to Agent Orange. The Board notes that it appears that there was some sort of internal error by the RO in implementing the effective date, and that an effective date in August 2014 was temporarily assigned, however, this error had been corrected by the time of the issuance of the February 2016 statement of the case (SOC). In the SOC, the RO denied the appellant's claim for an earlier effective date for DIC, based on a claim of CUE in a November 1977 RO decision. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (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 extant 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)). The Court has consistently stressed the rigorous nature of the concept of CUE. "'Clear and unmistakable error is 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 error' requires that error, otherwise prejudicial, . . . must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (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, 3 Vet. App. at 313-4. DIC is a benefit payable to a veteran's surviving spouse or child because of his service-connected death. In such a claim, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2016). Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Generally, the effective date of an award of DIC for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2016). 38 C.F.R. § 3.400 (c)(2) clarifies that the effective date for service-connected death after separation from service is the first day of the month in which the veteran's death occurred if the claim is received within 1 year after the date of death; otherwise, it is the date of receipt of claim. The effective date of award of DIC based on change of law or administrative issue, however, shall be in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110 (g) (West 2014); 38 C.F.R. §§ 3.114 (a), 3.400(p) (2016). The Agent Orange Act of 1991, Public Law No. 102-4, codified at 38 U.S.C.A. § 1116 (West 2014) and effective on February 6, 1991, liberalized the requirements for a grant of service connection in specific cases. The Agent Orange Law, in effect, liberalized the law and created a presumption of service connection for veterans exposed to certain herbicides who developed diseases many years after service. In 2010, changes were made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309 (e). These changes added inter alia ischemic heart disease as a presumptive disorder. Under 38 C.F.R. § 3.309 (e) (2016), ischemic heart disease is stated to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), and coronary bypass surgery. These changes were made effective by VA as of August 31, 2010. See 75 Fed. Reg. 53,702 (August 31, 2010). An exception to the general rule for establishing effective dates exists for an award of DIC benefits based on a veteran's death due to a "covered herbicide disease." VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816 (2016); see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The rules for effective dates for disability compensation awarded to Nehmer class members are set forth at 38 C.F.R. § 3.816. Under that regulation, a Nehmer class member is a Vietnam Veteran who has a covered herbicide disease. Covered herbicide diseases include ischemic heart disease (to include atherosclerotic cardiovascular disease and coronary artery disease). See 38 C.F.R. § 3.816 (b) (2016). In this case, the Veteran had a "covered herbicide disease" (i.e., ischemic heart disease (to include atherosclerotic cardiovascular disease and coronary artery disease)) within the meaning of 38 C.F.R. § 3.816 (b)(2). In accordance with Nehmer and its implementing regulation, if a Nehmer class member is entitled to DIC benefits, and a claim for DIC had been previously denied in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death occurred, except as provide for in 38 C.F.R. § 3.816 (d)(3). 38 C.F.R. § 3.816 (d)(1) (2016). If a claim for DIC benefits "was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused the death," the effective date for the award of DIC will be the date of such a claim or the date the disability arose, whichever is later, unless the claim was received within one year from the date of the veteran's death, in which case the effective date will be "the first day of the month in which the death occurred." 38 C.F.R. § 3.816 (d)(2), (3). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid." Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). The Veteran died in July 1977. The certificate of death stated that the cause of death was coronary artery occlusion due to or as a consequence of arteriosclerotic heart disease. The evidence of record at the time of the RO's November 1977 decision included the Veteran's service treatment records, which did not show complaints, findings, or a diagnosis involving heart disease. The Veteran's retirement examination report, dated in January 1974, showed that his heart, and vascular system, were clinically evaluated as normal. An associated electrocardiogram (EKG) was within normal limits. At the time of the RO's November 1977 rating decision, there was no post-service medical evidence of record. The RO's November 1977 rating decision shows that it concluded that service connection for the cause of the Veteran's death was not warranted because there was no evidence to show that the Veteran had a coronary artery occlusion or arteriosclerotic heart disease during service. The RO noted that the Veteran's heart was evaluated as normal in his January 1974 retirement examination report, and that his EKG was normal. At the time of the RO's decision, there was no competent evidence of a nexus between the Veteran's cause of death and his service. The Board finds that there was no CUE in the November 1977 rating decision. The RO applied the correct statutory and regulatory provisions to the correct and relevant facts. In particular, there is no basis to find that it was unreasonable for the RO to have determined that the Veteran's cause of death was not related to his service. There was no evidence to show that the Veteran had a coronary artery occlusion or arteriosclerotic heart disease during service, and at the time of the RO's decision, there was no competent evidence of a nexus between the Veteran's cause of death and his service. Based on the foregoing, there is no evidence of an "undebatable" error, which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. Rather, a review of the evidence, and the applicable statutory and regulatory provisions, clearly demonstrates that there was no failure by that RO to apply the correct statutory and regulatory provisions to the correct and relevant facts. An undebatably erroneous specific finding or conclusion in the November 1977 rating decision is not shown. The appellant's argument appears to be based on the assertion that the RO failed to apply the presumption for veterans presumed to have been exposed to Agent Orange to her claim in 1977. However, 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. In this case, there was no evidence to show service in Vietnam by the Veteran at the time of the RO's November 1977 decision. However, and in any event, presumptions governing veterans presumed to have been exposed to Agent Orange were not in effect at the time of the RO's November 1977 decision. The Agent Orange Act of 1991 liberalized the law and created a presumption of service connection for veterans exposed to certain herbicides who developed diseases many years after service. That presumption was extended to ischemic heart disease effective in August 2010. This is about 32 years after the RO's November 1977 decision. The appellant's claim that the November 1977 rating decision, which denied a claim for service connection for the cause of the Veteran's death, was clearly and unmistakably erroneous must therefore be denied. 38 C.F.R. § 3.105 (a). The Board will now analyze the claim apart from the CUE claim. In December 2014, the RO granted service connection the cause of the Veteran's death, based on the presumptive provisions for veterans presumed to have been exposed to Agent Orange. See 38 C.F.R. § § 3.307, 3.309. The RO also awarded DIC benefits on the basis that the Veteran's cause of death was related to his service. See 38 U.S.C.A. § 1310. The RO assigned an effective date for DIC of one year prior to the date of receipt of the appellant's claim, i.e., August 1, 2013. The appellant does not assert, and there is no evidence to show, that she filed a formal or informal claim for service connection for the cause of the Veteran's death with VA at any time after November 1977, and prior to August 1, 2014. The Veteran is a Nehmer class member. Specifically, the record shows that the Veteran served in the Republic of Vietnam, and that service connection for the cause of the Veteran's death has been granted based on presumptive service connection for ischemic heart disease, based on presumed exposure to herbicides during such service. As such, he is a Nehmer class member. However, the appellant did not have a claim for service connection for the cause of the Veteran's death that was denied between September 25, 1985, and May 3, 1989, nor did she did submit a claim for service connection for the cause of the Veteran's death between May 3, 1989, and August 31, 2010, the date on which the liberalizing law added ischemic heart disease as a disease presumptively due to in-service exposure to herbicides became effective. See 75 Fed. Reg. 53,702 (August 31, 2010). As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). The provisions of 38 C.F.R. § 3.114 , which implement 38 U.S.C.A. § 5110 (g), state in pertinent part: Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114 (a) (2016). If a claimant requests review of his or her claim within one year from the effective date of a liberalizing regulation, benefits may be authorized from the effective date of the liberalizing provisions. 38 C.F.R. § 3.114 (a)(1) (2016). If a claimant requests review of his or her claim more than one year from the effective date of the liberalizing regulation, benefits may be authorized only for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3) (2016). An earlier effective date is not warranted under 38 C.F.R. § 3.114. In cases such as this, in which a previously filed claim has been decided against the appellant (i.e., in November 1977), VA has statutory authority to grant benefits one year prior to the date of the claim or administrative determination of entitlement. McCay v. Brown, 106 F.3d 1577, 15809 (Fed. Cir. 1997). The RO has correctly assigned an effective date of August 1, 2013, which is one year prior to the date of receipt of her claim. Id. There is no basis for the assignment of an effective date more than one year prior to the date of receipt of her claim in August 2014. The Board further notes that, subsequent to the changes in the law effective August 31, 2010 that resulted in the grant of her claim, VA was not required to infer that she desired to file a claim for service connection for the cause of the Veteran's death. VA does not have the duty to provide personal notice of potential eligibility for VA benefits. Hill v. Derwinski, 2 Vet. App. 451 (1991); see also Lyman v. Brown, 5 Vet. App. 194 (1993). Furthermore, although VA is required to inform an appellant correctly about basic eligibility or ineligibility for [DIC] benefits, the remedy for breach of such an obligation cannot involve payment of benefits where statutory requirements for such benefits are not met. Shields v. Brown, 8 Vet. App. 346, 351 (1995). Under the circumstances, the RO was not authorized to pay the appellant DIC benefits more than one year prior to the date of receipt of her application for DIC benefits in August 2014, and the claim must be denied. 38 C.F.R. § 3.816. The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). To the extent that the appeal involves a CUE claim, the U.S. Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to all cases. Wensch v. Principi, 15 Vet. App. 362 (2001) (citing Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001)). In this case, the issue on appeal involves a CUE claim, which must be based on the record and law that existed at the time of the prior adjudication in question. 38 C.F.R. § 20.1403 (b). Therefore, a remand for application of the VCAA is not required. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc) (VCAA not applicable to CUE claim). Furthermore, the facts in this case are not in dispute and the appellant's appeal must be dismissed as a matter of law. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. ORDER An effective date prior to August 1, 2013 for a grant of Dependency and Indemnity Compensation based on service connection for the cause of the Veteran's death, to include on the basis of clear and unmistakable error in a November 1977 rating decision, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs