Citation Nr: 18141036 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-20 998 DATE: October 9, 2018 ORDER The claim of entitlement to service connection for the cause of the Veteran’s death is denied. The claim of entitlement to benefits pursuant to 38 U.S.C.§ 1318 (2012), to include whether the October 2001 Regional Office (RO) rating decision was clearly and unmistakably erroneous by not granting a total disability rating prior to January 2001, is denied. FINDINGS OF FACT 1. The Veteran died in August 2007 from an immediate cause of congestive heart failure (CHF); other significant conditions contributing to death but not resulting in the underlying cause was prostate cancer. 2. At the time of death, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 100 percent disabling. 3. CHF or prostate cancer were not shown during service or until many years after discharge from service, and there is no competent medical evidence that relates his fatal CHF (or prostate cancer) to active service, to include his PTSD. 4. The Veteran’s death was not due to or the result of service or to a disability of service origin. 5. The October 2001 rating decision that granted a total rating of 100 percent for PTSD, effective January 17, 2001, was reasonably supported by the evidence then of record, and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome of that determination. 6. The Veteran’s death was not caused by his service-connected PTSD nor did that condition (or his prostate cancer) contribute to the underlying cause of his death; the Veteran was not a prisoner of war; the Veteran had not been receiving compensation as one with a totally disabling service-connected disability for 10 years immediately preceding his death, nor from release of active duty for at least 5 years immediately preceding death. The Veteran is not shown to have been “entitled to receive” such benefits for the requisite length of time prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2018). 2. The October 2001 rating decision which granted a total rating of 100 percent for PTSD from January 2001 was not clearly and unmistakably erroneous. 38 U.S.C. §§ 1155, 5109A (2012); 38 C.F.R. §§ 3.105(a), 4.16, (2018). 3. The criteria for entitlement to Dependency and Indemnity (DIC) benefits under 38 U.S.C. § 1318 (2012) have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1942 to April 1946. He died in August 2007. The appellant is his surviving spouse. The procedural history as to the claims on appeal was provided in previous Board decisions in July 2015 and February 2017. It will not be repeated here. The claim of entitlement to service connection for the cause of the Veteran’s death. Criteria for Service Connection for Cause of Death To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (2012). For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (2018). A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). A spouse may also demonstrate that the disability that caused the Veteran’s death should have been service-connected. See 38 C.F.R. § 3.312 (2018). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). Facts and Analysis After a review of the record, the Board finds that the criteria for service connection for the cause of the Veteran’s death have not been met. 38 C.F.R. §§ 3.303, 3.312 (2018). The record shows that the Veteran died in August 2007, and the death certificate lists CHF as his primary cause of death with prostate cancer as a contributing cause. It is the appellant’s primary contention that the Veteran’s PTSD included hypertensive symptoms which contributed to the development of CHF which caused his death. The record shows that the Veteran’s service treatment records (STRs) are negative for report of, treatment for, or diagnoses of a heart disorder or for prostate cancer. However, he is service-connected for PTSD as a result of active military service. The questions before the Board are two-fold: 1) did the Veteran’s service-connected PTSD cause or contribute to his death; and 2) was the Veteran’s death the result of his military service or any disability sustained therein? These questions are interconnected and will be discussed in detail below. With respect to the Veteran’s heart disease and prostate cancer, there is no report of these conditions incurred until many, many years after service discharge. It is not contended by the appellant that these contentions were present during service. Primarily, she claims that his service-connected PTSD included hypertensive symptoms which contributed to his death. In support of her claim, she submitted medical treatise evidence from the internet. This evidence claims that late-life PTSD is linked to specific types of vascular disease, to include cerebrovascular disease (CVD) and myocardial infarction (MI). A VA medical opinion was requested to address the medical question raised by the appellant, her representative, and by the medical treatise report. Following review of the claims file, it was the examiner’s opinion that the Veteran’s CHF was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s PTSD. For rationale, she stated that the Veteran had had prior diagnoses under older diagnostic schema that increased the “unfortunate conclusion” that his psychiatric disorder caused a hypertensive reaction that the appellant felt caused his CHF. These included the use of the term “psychoneurosis” in old literature and “psycho-physiologic hypertensive condition” in August 1975. She further pointed out that psychoneurosis was a general term implying a non-psychotic illness felt not to be related to “personality, though the concepts have dramatically changed over the past 40 years.” “[P]sycho-physiologic hypertensive condition” as a concept was not existent in current literature pertaining to PTSD or other psychiatric disorders. She added that she was not aware of any cardiac correlation as this was purportedly a psychiatric diagnosis. As to the medical treatise evidence submitted in support of the appellant’s claim, the VA examiner noted that it showed that a study of more than 135,000 veterans older than 54 showed that those who had PTSD were more than 80 percent more likely to have MI, 60 percent more likely to have peripheral vascular disease and 56 percent more likely to have CHF. The VA examiner noted that this single article did not address causality. As noted in the report (which, she added, was not a peer-reviewed journal published article), there was an “association.” She explained that this might represent a causality, but it was also possible that the same factors which increased risk of the vascular diseases increased risk for development of PTSD, that the presence of vascular disease predecessors increased the risk of PTSD, or that there was another reason for the association not yet elucidated. In conclusion, the VA examiner stated that there were no articles in the searchable literature supporting a nexus of causality. This was not a “mature research field,” but at this time, CHF and vascular disease could be deemed to be secondary to PTSD. In this case, the Veteran had multiple other known causes for CHF, to include cardiovascular complications of diabetes, renal insufficiency, atrial fibrillation, and hypertension. The Board has considered the arguments of the appellant that the Veteran’s PTSD included hypertensive symptoms which contributed to his death by CHF. The Board accepts the logic of the argument and the sincerity of the belief that his heart disease was related to his PTSD. However, the surviving spouse is not shown to have the necessary education or expertise to provide an expert opinion as to the cause of the Veteran’s death. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the medical treatise evidence has been considered, the VA examiner of the record included a detailed review of the article and rationale as to why it was not convincing to show a causal relationship between PTSD and the development of heart disease. There is no expert medical opinion of any sort linking the Veteran’s heart condition to his PTSD. In light of the evidence of record, or the lack of any evidence of record linking the Veteran’s CHF (or prostate cancer) to his service-connected PTSD, the Board has no basis to find any relationship between his death due to heart failure and his service-connected PTSD. Further, as noted, the medical opinion addressing the medical question raised does not support the contention. In light of the evidence set forth above showing that the Veteran’s death was due to CHF, and the opinion of the VA doctor based on a complete review of the record, that his service-connected PTSD did not cause hypertensive symptoms which contributed to his death, the Board finds that the Veteran’s active duty service and any disabilities caused therein did not cause or contribute to his death. Moreover, the Board notes that the Veteran’s service-connected PTSD did not involve active processes affecting vital organs, and there is no indication that there were resulting debilitating effects or general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the other diseases or injury that primarily caused his death. See 38 C.F.R. § 3.312(c)(3) (2018); Webster’s Medical Desk Dictionary 760 (1986) (defining “vital” as “concerned with or necessary to the maintenance of life”). As such, the Veteran’s service-connected PTSD is not a contributory cause of death under 38 C.F.R. § 3.312(c)(3) (2018). Id. In summation, the preponderance of the evidence is against any finding that the Veteran’s military service or any disability incurred in service caused or contributed to his death. There is no probative evidence of record to establish any connection between the Veteran’s service-connected PTSD and his fatal CHF. In light of these findings, the benefit-of-the-doubt standard of proof does not apply here. 38 U.S.C. § 5107(b) (2012). The claim of entitlement to benefits pursuant to 38 U.S.C. 1318 (2012), to include whether the October 2001 RO rating decision was clearly and unmistakably erroneous by not granting a total disability rating prior to January 2001. DIC Benefits under 38 U.S.C. § 1318. DIC may be awarded to a surviving spouse or helpless child upon the service-connected death of a Veteran, with service-connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.5(a) (2018). Under 38 U.S.C. § 1318 (2012), VA death benefits may be paid to a deceased Veteran’s surviving spouse or children in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-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 service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22(a) (2018). In this instance, the Veteran was never a prisoner of war. The matter of entitlement to service connection for the cause of the Veteran’s death has been decided above in the negative. At the time of his death, the Veteran had not been receiving compensation for a totally disabling service-connected disability for at least 10 years and had not been rated as totally disabled due to a service-connected disability, nor from release of active duty for at least 5 years immediately preceding death. As such, in order for the appellant to qualify for DIC benefits under 38 U.S.C. § 1318 (2012), it must be established that the Veteran was “entitled to receive” compensation for service-connected disabilities which were totally disabling for at least 10 years at the time of his death. The phrase “entitled to receive” includes a situation in which a veteran, at the time of his death, would have received total disability compensation for service connected disability for the required time period but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed in the Veteran’s lifetime. 38 C.F.R. § 3.22(b)(1) (2018). There are also other bases under 38 C.F.R. § 3.22(b)(3) (2018) under which a Veteran may be considered to have been entitled to receive the required compensation, but those are not applicable in this case. Facts and Analysis As noted above, the Veteran died in August 2007. Since the date of the Veteran’s death, the appellant has sought entitlement to additional VA benefits based on a variety of arguments. Primarily, it is argued that a CUE was made in the October 2001 rating decision in that the 100 percent rating assigned at that time from January 2001 should have been assigned from a much earlier date, or that the medical records at that time constructively showed that a claim for a total rating based on individual unemployability should have been inferred at an earlier date. In effect, this would have resulted in the Veteran being at 100 percent disabling for PTSD for the requisite 10-year period as required by 38 U.S.C. § 1318 (2012) for DIC benefits. There is a claim that CUE was made by the VA examiner who conducted VA examination in March 1995 in that there was no review of the file at that time. It appears that this is true. In effect, it is being argued that that 1995 VA examination was inadequate to rate the PTSD disability at that time. Such an argument is not considered CUE under governing case law. As to the assertion that the medical findings of record at the time of the 2001 rating action showed that the 100 percent rating (or a TDIU) should have been awarded from an earlier date, the Board points out that allegations the previous adjudications improperly weighed and evaluated the evidence never rises to the stringent definition of CUE. See Fugo v. Brown, 6 Vet. App. At 43-44 (1993). To the extent that the Veteran’s claim encompasses a request for a reweighing of the evidence, such is impermissible in a CUE claim. Luallen v. Brown, 8 Vet. App. 92 (1995). The October 2001 rating decision on appeal here granted an increased rating for PTSD to 100 percent, January 17, 2001, (the date his claim was received). Evidence of record at that time included a 1995 diagnosis of anxiety neurosis with depressive features with PTSD. Subsequently dated outpatient treatment records primarily referenced treatment for other conditions, although it was noted that he was having some psychiatric problems, (e.g. hallucinating bugs on the wall). VA fee basis examination was conducted in July 2001 showed increased psychiatric symptoms. The RO determined that the increase in severity of the Veteran’s PTSD was shown not just in the July 2001 examination but in the outpatient records dated previously. Therefore, pursuant to the diagnostic codes regarding assigment of effective dates, the 100 percent rating was assigned from the date that the Veteran’s claim for increase was filed. That date was January 17, 2001. The rating decision notes that all reasonable doubt was resolved in the Veteran’s favor in this favorable determination. This rating decision is the central focus of this appeal. Standard Governing CUE Claims Previous RO determinations, which are final and binding, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a) (2018). CUE is a very specific and rare kind of “error.” It is a kind of error, of fact or of law, that when called to the attention of later reviewers compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court propounded a three-prongs to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than 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, 3 Vet. App. at 313-14). Analysis As discussed above, the law has imposed a very strict standard for claims brought on the basis of CUE. Specifically, the error must be clear in light of the facts as they were known at the time of the decision being challenged and based on application of the laws and regulations in existence at that time. In October 2001, at the time of the rating decision, it was the RO’s determination that an increased rating of 100 percent was warranted from the date that the claim for an increased rating was filed. There is no regulation that provides for an earlier assignment of the 100 percent evaluation. See the provisions of 38 U.S.C. § 5110(a) (2012) which state that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of disability compensation to a Veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1) (2012). The provisions of 38 C.F.R. § 3.400 (2018) stipulate that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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 later. In the case of direct service connection, the effective date of an award is the day following separation from active service or date entitlement arose if a claim is received within 1 year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2018). The October 2001 rating decision generously determined that the increase in mental health symptoms was shown in the outpatient treatment records prior to the July 2001 examination report and granted the earliest date possible for the assignment of the 100 percent rating pursuant to the diagnostic codes. This discussion of pertinent evidence shows that the evidence as it existed at the time was before the RO and was considered in adjudicating the claim. Even if the Board were now to assume that the PTSD symptoms warranted a 100 percent rating prior to that date, this would not be a sufficient basis for a finding of CUE. Rather, it would be a mere disagreement with how the evidence was weighed, and such a disagreement can never serve as the basis for a finding of CUE. See Fugo, 6 Vet. App. at 44. In short, the evidence of psychiatric symptoms upon examination in 1995 did not meet the criteria for a 100 percent rating. However, subsequently dated outpatient treatments records, corroborated by the July 2001 VA examination showed that he suffered from severe mental health symptoms warranting an increased rating of 100 percent. And, per the diagnostic codes for earlier effective dates, the earliest date assignable for the 100 percent rating is the date that the claim for an increased rating was filed. That date is January 17, 2001. No CUE in the October 2001 rating decision is demonstrated. In sum, the elements of CUE have not been established here. The October 2001 rating decision was consistent with the facts of record and the existing statutory and regulatory provisions at the time. In addition, based on the evidence of record, reasonable minds could differ as to whether the record showed that the Veteran’s PTSD. Where reasonable minds could differ, the error, if any, is not clear and unmistakable in nature. See Fugo, 6 Vet. App. 40, 43-44 (1993), (citing Russell, 3 Vet. App. at 313-14 (1992) (en banc)). Therefore, the Board finds that there is no CUE in the October 2001 rating decision that granted a 100 percent rating for PTSD as of January 17, 2001, but not at an earlier date as desired by the appellant. Inasmuch as the Board has determined that CUE in the October 2001 rating decision is not established, the Veteran was not “entitled to receive” a 100 percent disability rating for a period of at least 10 years prior to his death. As such, the requirements for an award of DIC under 38 U.S.C. § 1318 (2012) have not been met and the claim must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith