Citation Nr: 1824596 Decision Date: 04/23/18 Archive Date: 05/03/18 DOCKET NO. 14-21 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to August 1957. He died in February 2012, and the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. FINDING OF FACT The Veteran, who was not a prisoner of war (POW), was not rated totally disabled due to service-connected disabilities for 10 continuous years immediately preceding death, nor was he rated as totally disabled continuously since release from active duty and for at least 5 years immediately preceding death; it cannot be said that clear and unmistakable error was committed by VA in a May 2003 rating decision establishing an effective date of February 4, 2003, for the award of a 100 percent rating for the Veteran's psychiatric disability. CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. §§ 3.22, 20.1106 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. DIC Benefits under 38 U.S.C. § 1318 Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected. A "deceased veteran" for the purposes of this provision is a veteran who died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years after separation from active service. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. A "deceased veteran" also includes a former prisoner of war (POW) who died after September 30, 1999, with a service-connected disability rated totally disabling for not less than one year immediately preceding death. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22(c). By way of history, in January 2000, VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C. § 1318, to restrict the award of DIC benefits to cases where a veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time specified in 38 U.S.C. § 1318, or would have established such a right but for CUE in the adjudication of a claim or claims. See 65 Fed. Reg. 3,388 (Jan, 21, 2000). The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility. In Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008), the Federal Circuit held that the application of amended 38 C.F.R. § 3.22, the implementing regulation for section 1318, may be applied retroactively to section 1318 claims filed prior to the regulatory change. Additionally, the Federal Circuit has held that § 3.22 applies retroactively to those DEC claims even where an appellant filed the claim after the U.S. Court of Appeals for Veterans Claims decided Green v. Brown, 10 Vet. App. 111 (1997), which authorized the theory of hypothetical entitlement. Moffit v. Shinseki, 26 Vet. App. 424 (2014); Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed. Cir. 2009). In this case, the Veteran died in February 2012, and because the appellant filed her claim for DIC after the 2000 regulation precluding hypothetical entitlement went into effect, hypothetical entitlement is not available as a basis on which to grant section 1318 DIC benefits. Rather, the revised regulation defines "entitled to receive" to include when a veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because: (i) VA was paying the compensation to the veteran's dependents; (ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (iii) The veteran had not waived retired or retirement pay in order to receive compensation; (iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22(b) (2017). Here, the Veteran was not a prisoner of war, and looking back to the 10 years preceding the Veteran's death, service connection was in effect for psychoneurotic reaction/conversion reaction with PTSD disorder (hereinafter psychiatric disability), multiple 2nd degree burn scars, and multiple 3rd degree burn scars. Significantly, none of these disabilities resulted in a continuous total disability rating throughout the applicable time frame. Rather, his combined evaluation was 60 percent disabling until February 4, 2003, at which time the Veteran was granted a 100 percent rating for his psychiatric disability. The requirement of having a service-connected disability rated totally disabling was only met from February 4, 2003, until the Veteran's death in February 2012-a period of 9 years. As such, the Board finds that the Veteran was not "in receipt of" compensation for a service-connected disability rated as totally disabling for 10 or more years immediately preceding death. Further, the Board finds that the Veteran was not "entitled to receive" compensation for a service-connected disability rated as totally disabling for 10 or more years immediately preceding death. In this regard, the Board emphasizes that "hypothetical entitlement" as an additional basis for establishing eligibility is prohibited. Moreover, the appellant has not claimed entitlement to DIC under the provisions of 38 U.S.C. § 1318 based on the submission of new and material evidence to reopen a previously final VA decision, nor does a review of the claims file demonstrate that such new and material evidence has been received. Rather, she cites evidence existent at the time of a May 2003 rating decision in support of her claim. See August 2014 Statement of Accredited Representative in Appealed Case (claiming that the 100 percent rating assigned effective February 4, 2003, should have been effective back to the Veteran's December 2001 claim for a total disability rating and citing evidence existent at the time of the previous May 2003 rating decision). Next, it has not been established that, but for the receipt of VA or military retirement pay or the withholding of payment, the Veteran would have been entitled at the time of his death to receive compensation for a service-connected disability that was continuously rated totally disabling by schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by schedular or unemployability rating from the date of the Veteran's discharge from service. In ascertaining whether the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling, but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during his lifetime, the Board notes that the Veteran did not submit a notice of disagreement with the effective date assigned for the 100 percent rating assigned for his psychiatric disability following the May 2003 rating decision, and the effective date assigned became final. It appears to be the appellant's contention that there was CUE in the May 2003 rating decision's failure assign an effective date back to December 2001 for the award of a 100 percent rating for the Veteran's psychiatric disability pursuant to 38 C.F.R. § 3.105(a) (2017). In this regard, the appellant stated that the May 2003 rating decision "denied [a total disability rating based upon individual unemployability (TDIU)] as moot, granting a 100% evaluation for PTSD on a scheduler basis effective 2/4/2003 'the date facts found shows based on a combined review of all the evidence of record than an increase is warranted.'"). See August 2014 statement. She explains that, because the Veteran filed a claim for a total rating for PTSD in December 2001, submitting medical evidence supporting an increase and continuously prosecuting his claim, "he should be considered as 100% disabled from the date of his claim for increase." Id. However, CUE is a very specific and a 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. 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 clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313. Here, it cannot be said that reasonable minds could not differ as to whether the Veteran was entitled to an effective date prior to February 4, 2003, for his total rating. In this regard, the RO, in its May 2003 rating decision, expressly determined that the facts found warranted an increase in psychiatric disability to 100 percent as of February 4, 2003; this infers that the RO determined that the evidence prior to February 4, 2003, did not support a total rating. Additionally, the RO requested specific information regarding the nature of the Veteran's role in the plumbing business he started in a July 2002 development letter, and although the Veteran responded in September 2002, he did not answer all of the pertinent questions, to include whether he still owned the business. Also, the March 2003 VA examination used to support the increase to 100 percent specifically noted that "the [V]eteran's condition has significantly worsened in the last six to eight months. . . . As far as [his] employability goes he does not appear at this time to be employable due to the significant impairment resulting from PTSD which is causing cognitive disturbance emotional instability intrusive thoughts avoidance and arousal behaviors." See March 2003 VA examination report (emphasis added). The July 2001 VA treatment report indicated that the Veteran was totally and permanently disabilities from PTSD (which was in the record at the time of the May 2003 rating decision when it assigned an effective date of February 4, 2003), but it cannot be said that it was undebatable that he was entitled to a 100 percent schedular rating for his psychiatric disability or for TDIU prior to February 4, 2003. In other words, he did not meet the criteria to a 100 percent rating or TDIU dating back to 10 years prior to his death, i.e. February 2002, so as to manifestly change the outcome. Rather, it appears that reasonable minds could differ on the issue of entitlement to a total rating prior to February 4, 2003, and therefore, it cannot be said that there was CUE in the effective date assigned in the May 2003 rating decision. For all the foregoing reasons, the Board must conclude that the Veteran was not a "deceased veteran" as defined in 38 U.S.C.A. § 1318(b), and that the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318(a). As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs