Citation Nr: 18159108 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-14 797 DATE: December 19, 2018 ORDER An effective date of May 1, 1999, for the award of dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Appellant’s original claim for DIC benefits was received within one year of the Veteran’s death in May 1999; a now final October 1999 rating decision denied the claim. 2. The Board finds the RO committed clear and unmistakable error (CUE) in the last final rating decision when it failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. CONCLUSION OF LAW The criteria for an effective date of May 1, 1999, for the award of DIC benefits based on service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from December 1954 to September 1976. He died in May 1999 and appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Appellant presented testimony at a hearing before the undersigned Veterans Law Judge in September 2018. A transcript is of record. 1. Entitlement to an earlier effective date for the award of DIC benefits based on service connection for the cause of the Veteran’s death, to include on the basis of CUE Effective dates for the award of VA benefits are generally governed by 38 U.S.C. § 5110, which states 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 DIC, 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 DIC will be the first day of the month in which the death occurred if the application is received within one year from the date of death; otherwise, date of receipt of claim. 38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2) (2018). The appellant filed an original claim for DIC benefits based on service connection for the cause of the Veteran’s death that was received on July 7, 1999. An October 1999 rating decision denied the claim. In November 1999, the appellant submitted both a private medical opinion in support of her claim and a notice of disagreement. The RO issued a statement of the case in December 1999 and a supplemental statement of the case in February 2000, but appellant did not formalize her appeal and the October 1999 rating decision became final. The appellant filed a claim to reopen in April 2014. The July 2014 rating decision that is the subject of this appeal reopened the previously denied claim and granted service connection for the cause of the Veteran’s death. This grant was based on resubmission of the private medical opinion that had been originally provided in November 1999 that established that the Veteran’s chronic obstructive pulmonary disease (COPD), which was an underlying cause of his death from respiratory failure, was due to his occupational exposure to smoke and fumes in service. Appellant asserts that the effective date for DIC benefits based on service connection for the cause of the Veteran’s death should be the date of the Veteran’s death on May 16, 1999. An assertion of CUE has also been raised. See September 2018 statement. The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). Under 38 C.F.R. § 3.105(a), a prior final decision can be reversed or amended where evidence establishes “clear and unmistakable error.” For CUE to exist: (1) “[e]ither the correct facts, as they were known at that 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 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)). 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). To constitute CUE, errors must be “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. “It must always be remembered that CUE is a very specific and rare kind of ‘error.’” Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App.92, 95 (1995). At the time of the October 1999 rating decision, DIC could be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a) (1999). A veteran’s death could be service connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval or air service. 38 U.S.C. § 1310; 38 C.F.R. § 3.303(a) (1999). The service-connected disability could have been either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (1999). A disability was the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b) (1999). A disability was a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c) (1999). At the time of the October 1999 rating decision, VA law provided that service connection could be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(1999). The Board finds that there was CUE in the prior final rating decision. In the November 1999 statement of the case, the RO acknowledged that the private medical opinion had been received and that the opinion determined that the Veteran’s COPD was directly related to occupational exposure to smoke and fumes while in service; however, the RO went on to find that the evidence of record did not establish that the cause of the Veteran’s death was incurred in or aggravated by his military service. The Board finds CUE because the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts, since contrary to the RO’s determination, there was evidence in the form of the private medical opinion that established the cause of the Veteran’s death was due to COPD that was etiologically related to service. There was no medical opinion to the contrary. This finding of CUE in the last final rating decision is bolstered by the fact that the private medical opinion was resubmitted by appellant in April 2014 in conjunction with her claim to reopen and was used both to reopen the previously denied claim and to grant DIC benefits for the cause of the Veteran’s death. In other words, had the RO applied the correct facts to the law in existence at the time of the initial denial, it would have manifestly changed the outcome of the prior final rating decision, since the exact same evidence was cited by the RO in support of its grant in the July 2014 rating decision. No additional medical evidence or argument was considered in the July 2014 decision. Since there was CUE in the prior final rating decision, and appellant’s original claim for DIC benefits was received within one year of the Veteran’s death in May 1999, an effective date of May 1, 1999, the first day of the month in which the death occurred, is granted for the award of DIC benefits based on service connection for the cause of the Veteran’s death. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel