Citation Nr: 19150960 Decision Date: 07/02/19 Archive Date: 07/01/19 DOCKET NO. 17-19 979 DATE: July 2, 2019 ORDER Entitlement to increased Dependency and Indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1311(a)(2), to include based on clear and unmistakable error (CUE) in an April 2008 rating decision awarding a 100 percent rating for Lyme disease effective October 14, 2005, is denied. FINDINGS OF FACT 1. An April 2008 rating decision awarded a 100 percent rating for Lyme disease effective October 14, 2005. 2. The correct facts, as they were known at the time of the April 2008 decision, were before the Board, and the statutory or regulatory provisions extant at the time were correctly applied. 3. The Veteran was not in receipt of and was not entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding his death on September [Redacted], 2013. CONCLUSIONS OF LAW 1. The April 2008 rating decision awarding a 100 percent rating for Lyme disease effective October 14, 2005, was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403. 2. The criteria for increased DIC benefits have not been met. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1980 to April 1984. The Veteran died on September [Redacted], 2013; the appellant is his surviving spouse. In December 2018, the Board referred a claim of CUE in an April 2008 rating decision because it was inextricably intertwined, remanded the claim of entitlement to a higher rating for DIC benefits. For clarification, the Board notes that an appellant seeking DIC benefits may not raise a freestanding CUE claim. See generally Haines v. West, 154 F.3d 1298 at 1301-02 (Fed. Cir. 1998); see also Rusick v. Gibson, 760 F.3d 1342, 1344 (Fed. Cir. 2014). The appellant may, however, raise such an allegation as a theory of entitlement in support of her DIC claim. As such, the Board characterizes the issue on appeal as indicated above. DIC is payable to a veteran’s surviving spouse when the veteran dies from a service-connected disability. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a). For deaths occurring on or after January 1, 1993, the monthly rate of DIC for the surviving spouse shall be the amount set forth in 38 U.S.C. § 1311(a)(1). See 38 C.F.R. § 3.10(b).   An increased DIC amount, commonly called “enhanced” DIC, will be paid by VA to the surviving spouse of a deceased veteran who, at the time of death, was in receipt of or was entitled to receive (or, but for the receipt of retired pay or retirement pay, was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. See 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(c). 38 U.S.C. § 1311(a)(2) does not afford a basis for an initial grant of DIC benefits, but only identifies an additional benefit for claimants who have already qualified for DIC benefits. See Barela v. Shinseki, 584 F.3d 1379, 1384 (Fed. Cir. 2009). In determining the period of a veteran’s disability, only the period in which the veteran was married to the surviving spouse shall be considered. See 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(f)(1). For purposes of 38 U.S.C. § 1311(a)(2), “entitled to receive” means that a veteran filed a claim for disability compensation during his or her lifetime and (1) would have received total disability compensation for eight years prior to death but for clear and unmistakable error committed by VA in a decision made during the veteran’s lifetime; (2) additional service department records submitted before or after the veteran’s death, that were in existence at the time of a prior VA decision but had not previously been considered by VA, provide 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 38 C.F.R. §§ 3.156 (c) and 3.400(q)(2) for a period of eight years prior to death; or (3) at the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for eight years prior to death, but the veteran was not receiving compensation for one of six reasons specified in § 3.10(f)(3)(iii). See 38 C.F.R. § 3.10(f)(3).   The appellant asserts that the April 2008 rating decision’s assignment of an effective date of October 14, 2005 for the total rating for his service-connected Lyme disease residuals was the product of CUE, as the Veteran filed a claim for service connection for Lyme disease residuals in June 2005. A prior final rating decision contains CUE where: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at that time were not correctly applied; (2) the error is “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) such determination of CUE is based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); 38 C.F.R. § 20.1403. Upon review of the record, the Board determines that a finding of CUE in the April 2008 rating decision is not warranted. The pertinent laws and regulations at the time of April 2008 rating decision were essentially the same as they are now. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110(a); 38 C.F.R. § 3.400. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Although the appellant contends that the Veteran filed a service connection claim for Lyme disease in June 2005, the record shows that VA received a claim for service connection for Lyme disease on October 14, 2005. To support her claim, the appellant references the May 2006 rating decision that references a June 2005 claim for increased evaluation, stating that this proves that a claim for service connection for Lyme disease was submitted in June 2005. However, the June 2005 statement specifically indicates that the Veteran wanted to file a claim for service connection for mass granular tumors. The statement also references that the Veteran is service-connected for scars, but there is no reference to Lyme disease. Therefore, the Board finds that the June 2005 statement cannot be construed as a claim for service connection for Lyme disease. The record does not show that a claim for service connection for Lyme disease (formal or informal) was filed before October 2005; therefore, October 2005 is the correct effective date and there is no CUE in the April 2008 rating decision that assigned the October 2005 effective date. The appellant further asserts that the evidence of medical treatment for Lyme disease shows that an earlier effective date is warranted. As a second theory of entitlement, the appellant essentially argues that she is entitled to enhanced DIC based on a theory of hypothetical entitlement. She notes that the Veteran was treated for Lyme’s disease before October 2005, which rendered him “too disable to work” (as noted on his April 2008 application for TDIU) from March 2005, and that if the Veteran had applied for VA compensation benefits at that time, VA would have awarded him a total disability rating. However, the evidence of medical treatment for Lyme disease was not submitted until October 2005 (with the claim for service connection) and the application for TDIU was not submitted until 2008; therefore, the evidence does not support a finding that service connection for Lyme disease is warranted before October 2005. Following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the appellant’s claim of entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2). Upon review of the evidence, the Board finds that the evidence is against the appellant’s claim of entitlement to enhanced DIC benefits. As there is no claim for service connection for Lyme disease before October 14, 2005, there is no CUE in the April 2008 rating decision. As such, the Veteran was rated totally disabled for 7 years, eleven months and 15 days prior to his death in September 2013; therefore, enhanced DIC benefits under U.S.C. 1311(a)(2) are not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.