Citation Nr: 1802861 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-31 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether there was clear and unmistakable error (CUE) in the January 17, 2007, rating decision, which awarded entitlement to service connection for the Veteran's cause of death, effective September 1, 2005. REPRESENTATION Appellant represented by: Andrew DeHeer, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, M.R. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to February 1971, and from April 1974 to September 1987. He died in September 1989, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant provided testimony before the undersigned Veterans Law Judge at a Video Conference hearing in July 2014. A transcript from this hearing is of record. In an October 2015 decision, the Board, in part, found that there was no CUE in the January 17, 2007, rating decision. The appellant appealed the issue to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In an August 2017 Memorandum decision, the Court set aside the October 2015 Board decision with regard to this issue and remanded the issue of whether there was CUE in the January 17, 2007, rating decision to the Board for readjudication consistent with the August 2017 decision. FINDINGS OF FACT 1. At the time of the January 2007 rating decision, the issue of entitlement to service connection for the cause of the Veteran's death was first raised by a claim for burial benefits, which was filed by the appellant in November 1989, within one year of the Veteran's death in September 1989. 2. As a result, the January 2007 rating decision involved undebatable error which, had it not been made, would have manifestly changed the outcome of that decision with regard to the effective date of the Veteran's cause of death. CONCLUSIONS OF LAW 1. The January 2007 rating decision, assigning September 1, 2005, to be the effective date for the cause of the Veteran's death, was clearly and unmistakably erroneous. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for assignment of an effective date from September 1, 1989, for the grant of service connection for the cause of the Veteran's death, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board notes that an allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision which is determined on the basis of the evidence of record at the time the decision in question was rendered. Hence, the VCAA is not applicable to this matter. Factual Background The Veteran died in September 1989. The cause of death was listed as respiratory failure due to pneumonia due to lung cancer. The Veteran did not have any claims pending at the time of his death. The appellant filed burial benefits claims in October and November 1989. On the application for burial benefits, the appellant specifically indicated that she was not claiming entitlement to service connection for the cause of the Veteran's death. VA paid nonservice-connected burial benefits on December 11, 1989, and the appellant was notified that same day. The appellant did not appeal the nonservice-connected finding or file a claim for DIC at that time. The appellant filed a DIC claim on August 22, 2006. A rating decision dated October 23, 2006, granted entitlement to service connection for the cause of the Veteran's death, effective August 22, 2005, one year prior to the date of the claim. A decision dated January 17, 2007, established September 1, 2005, the first day of the following month, to be the effective date for the cause of the Veteran's death. This effective date was established pursuant to 38 C.F.R. §§ 3.400 (c) (2), 3.31, and 3.114(a). The appellant was notified of this decision in a January 17, 2007, letter and informed of her appellate rights and the time period for submitting a notice of disagreement with the decision. She filed an appeal with this decision on April 28, 2011. The appellant contends that there is CUE in the January 17, 2007, rating decision that granted entitlement to service connection for the cause of the Veteran's death, and assigned an effective date of September 1, 2005. As determined in the October 2015 Board decision, the appellant did not timely appeal that decision. Thus, it is considered final, although it may be reversed if found to be based upon CUE. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). Laws and Regulations Where CUE is found in a prior rating decision, the prior decision will be reversed or revised, and, for the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of the prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (a) (2017). There is a three-pronged test to determine whether CUE was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). 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. If a claimant wants to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40 (1993); Grover v. West, 12 Vet. App. 109 (1999); Daniels v. Gober, 10 Vet. App. 474 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel v. Brown, 6 Vet. App. 242 (1994); Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In short, a disagreement with how VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey at 384. The law and regulations in effect at the time of the January 2007 rating decision provided that the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2006). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. §3.309 (e). Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) were added to the list of diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e) on June 9, 1994. The law also provided that a specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by § 3.153) must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A § 5101 (a) (West 2002); 38 C.F.R. § 3.152 (a) (2006). A claim by a surviving spouse or child for compensation or dependency and indemnity compensation will also be considered to be a claim for death pension and accrued benefits, and a claim by a surviving spouse or child for death pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. 38 C.F.R. § 3.152 (b) (2006). Death benefits based on service-connected death after separation from service will be effective 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, it will be the date of receipt of the claim. 38 C.F.R. § 3.400 (c)(2) (2006). Regardless of VA regulations concerning effective dates of awards, and except as provided in paragraph (c) of this section, payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, dependency and indemnity compensation, or the monetary allowance under 38 U.S.C. 1805 for a child suffering from spina bifida who is a child of a Vietnam veteran may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31 (2006). Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran 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. 38 C.F.R. § 3.114 (a) (2006). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3) (2006). With respect to earlier effective date claims involving service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Dep't of Veterans' Affairs. 38 C.F.R. § 3.816 (2007). See Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i) (2006). The term "covered herbicide disease" includes respiratory cancers, such as lung cancer. 38 C.F.R. § 3.816 (b)(2) (2006). This regulation applies to claims for disability compensation for the covered herbicide disease that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816 (c) (2006). If a Nehmer class member's claim for disability compensation for the covered herbicide disease 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 disease, the effective date of the award will be the latter of the dates (1) such claim was received by VA, or (2) the date the disability arose. 38 C.F.R. § 3.816 (c)(2) (2006). A claim will be considered a claim for compensation for a particular covered herbicide disease if the application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability. 38 C.F.R. § 3.816 (c)(2)(i) (2006). VA issued regulations creating a presumption of service connection for respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), effective June 9, 1994. 75 Fed. Reg. 94 -14124 (June 9, 1004). In sum, the law and regulations governing service connection for the cause of the Veteran's death, diseases subject to presumptive service connection, and effective dates are virtually the same now as they were in January 2007. Analysis The appellant essentially disagrees with the September 1, 2005, effective date assigned for the grant of entitlement to service connection for the cause of the Veteran's death. The appellant advances several theories in support of her argument. First, she contends that she filed a valid claim for DIC benefits within one year of the Veteran's death, and therefore the effective date for the grant of service connection for the cause of death should be the first day of the month in which the veteran's death occurred. See 3.400(c)(2). In support of her argument, she points to her October 1989 Application for United States Flag for Burial Benefits and her November 1989 Application for Burial Benefits. In the alternative, she contends that her submissions in the one-year period following the Veteran's death should be construed as valid DIC claims. In this regard, she contends that her December 1989 Form 3113, Application for Annuity and/or Arrears of Pay, should have been construed as a valid death pension claim, and thus, a claim for DIC, as provided under 38 C.F.R. § 3.152 (b)(1). As noted above, the appellant contends that she filed a valid claim for DIC benefits within one year of the Veteran's death as her submissions (October 1989 Application for United States Flag for Burial Benefits and her November 1989 Application for Burial Benefits) in the one-year period following the Veteran's death should be construed as valid DIC claims. Notably, Judicial and VA General Counsel precedents have held, as a matter of law, that an application for VA burial benefits is not a claim for DIC in the way that a claim for DIC is a claim for other related benefits. See Mitscher v. West, 13 Vet. App. 123 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995) (application for burial benefits not an informal claim for DIC); Herzog v. Derwinski, 2 Vet. App. 502 (1992). See also Thompson v. Brown, 6 Vet. App. 436, 437 (1994), VAOPGCPREC 35-97 (December 9, 1997). However, the General Counsel did not exclude an application for burial benefits from satisfying the substantive requirements of an informal claim for DIC if it otherwise indicated an intent to apply for the benefit. See VAOPGCPREC 35-97 at 4. In addition, VBA's M21-1 Live Manual indicates that even a claim for burial benefits can be an informal claim for DIC in certain circumstances. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 2, Section C, Topic 4, Block d (change date July 15, 2016). The Live Manual further references and provides an internet link to the "Nehmer Training Guide." As a result, the necessary determination that needs to be made is whether the Veteran's October 1989 Application for United States Flag for Burial Benefits or her November 1989 Application for Burial Benefits constituted an informal claim for DIC based upon an indicated an intent to apply for the benefit. The Board notes that on the October 1989 and November 1989 forms, the appellant specifically indicated that she was not claiming service connection for the cause of the Veteran's death. However, as addressed by the August 2017 Memorandum decision, while the appellant checked the box indicating that she was not seeking benefits for the Veteran's cause of death, the record demonstrates that this was done as a result of VA and the rest of the government's delayed recognition of the hazards of exposure to Agent Orange. Additionally, as again determined by the August 2017 Memorandum decision, reliance on the appellant specifically indicating that she was not claiming service connection for the cause of the Veteran's death on the October 1989 and November 1989 forms was "inevitably circular". Significantly, the record demonstrates that within a year of her husband's death, the appellant sought the assistance of a Veterans Service Organization (VSO) in seeking benefits related to her husband's death. Additionally, the Board notes that a claimant is presumed to be seeking the maximum benefit allowed by law. See AB v. Brown, 6 Vet.App. 35, 38 (1993). As determined by the Court in its Memorandum decision, the appellant appeared to be seeking the maximum benefit allowed by law by filing for multiple benefits in a timely manner. The language of 38 C.F.R. § 3.816(d)(2) provides that it is the intent of the claimant and not the actual filings that dictate whether a DIC claim has been filed. See 38 C.F.R. § 3.816(d)(2) (providing that "a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC"). The Court in its Memorandum decision also noted any reliance on the checked box is inconsistent with the Northern District of California's holding in Nehmer v. U.S. Veterans Administration (Nehmer II). The Court indicated that Nehmer II held that if a veteran failed to raise the Agent Orange issue because he knew it was useless to do so under 38 C.F.R. § 3.311a (d), then the veteran was denied benefits as a result of the invalid regulation just as surely as if he had expressly raised the issue and it had been rejected. 32 F.Supp.2d 1175, 1180 (1999). The Court noted that while this statement was in response to VA's position that a claimant had to expressly reference Agent Orange or Herbicides in a claim in a previous denial to be included in the Nehmer class, this holding evidences that VA cannot penalize a claimant for not filing for a benefit where it would have been futile to do so. As noted again by the Memorandum Decision, it is the intent of the claimant and not the actual filings that dictate whether a DIC claim has been filed. The Court in its Memorandum decision also found that the appellant demonstrated an intent to file a claim for DIC in 1989 as the evidence demonstrates that she was seeking the maximum benefit payable by law, including DIC. See 38 U.S.C. § 7105, Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). As a result and based on the facts of this case, the November 1989 claim for burial benefits may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for that benefit. Id. Importantly here, the underlying issue common to both claims is entitlement to service connection for the cause of the Veteran's death. Moreover, the appellant is a Nehmer class member because she is surviving spouse of a deceased Vietnam Veteran who died from a covered herbicide disease. See 38 C.F.R. § 3.816 (b). Furthermore, her November 1989 claim for service-connected death benefits was received by VA between May 3, 1989, and August 31, 2010, the effective date of the regulation establishing a presumption of service connection for lunger cancer. See 38 C.F.R. § 3.816 (d)(2). Finally, her November 1989 claim was received within one year from the date of the Veteran's death in September 1989. See 38 C.F.R. § 3.816 (d)(3). Thus, the effective date of the award of service connection for the cause of the Veteran's death in this case shall be assigned from September 1, 1989, which is the first day of the month in which the death occurred. See Id. Thus, in viewing the evidence of record in January 2007 in conjunction with the pertinent laws and regulations in effect at that time, the Board finds that there was no basis for assigning an effective date of September 1, 2005, for the grant of entitlement to service connection for the cause of the Veteran's death. In light of the foregoing, the Board finds that, while the correct facts were before the RO at the time of the January 2007 adjudication, had the RO fully reviewed the evidence on file in accordance with 38 C.F.R. § 3.816 (d)(2), such would have manifestly changed the outcome of the RO's decision as regards to the assignment of an effective date of September 1, 2005, for the grant of entitlement to service connection for the cause of the Veteran's death. Accordingly, an effective date of September 1, 1989 is warranted for the award of service connection for the cause of the Veteran's death. ORDER The January 2007 rating decision contained CUE and an earlier effective date of September 1, 1989, for the award of service connection for the cause of the Veteran's death, is granted, subject to laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs