Citation Nr: 19166676 Decision Date: 08/28/19 Archive Date: 08/27/19 DOCKET NO. 19-08 257 DATE: August 28, 2019 ORDER Restoration of the award of dependency and indemnity compensation (DIC) benefits based upon service connection for the cause of the Veteran’s death is granted. FINDING OF FACT It is not shown that the December 2015 rating decision’s award of DIC based upon service connection for the cause of the Veteran’s death involved clear and unmistakable error. CONCLUSION OF LAW The severance of the award of DIC based upon service connection for the cause of the Veteran’s death was not proper; restoration of DIC based upon service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303, 3.304, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to November 1982, to include service in the Republic of Vietnam during the Vietnam era. He died in November 2014, and the appellant is his surviving spouse. This case comes to the Board on appeal from a March 2018 rating decision of the Agency of Original Jurisdiction (AOJ) which determined that there was clear and unmistakable error (CUE) in a December 2015 VA Regional Office (RO) decision that granted service connection for the cause of the Veteran's death (one basis for DIC), and which severed service connection. 1. Whether the severance of DIC benefits was proper DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312. In the present case, the Veteran died at home in Germany in November 2014. The Veteran’s service personnel records show that he served in the Republic of Vietnam during the Vietnam Era. Therefore, he is presumed to have been exposed to an herbicide agent during service. 38 C.F.R. § 3.307 (a)(6)(iii). In a December 2015 rating decision, the AOJ granted service connection for the cause of the Veteran’s death. The AOJ concluded that the Veteran served in the Republic of Vietnam, and that he is presumed to have been exposed to an herbicide agent (Agent Orange) in service. The AOJ determined that the Veteran’s death certificate shows that the primary cause of death was ischemic cardiomyopathy and granted service connection for the cause of the Veteran’s death on a presumptive basis. Governing regulation provides that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, as in this case, certain diseases may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (d), 3.309(e). Ischemic heart disease is a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309 (e). Ischemic heart disease includes, but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal’s angina. 38 C.F.R. § 3.309 (e). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id., Note 2. In the March 2018 Decision Review Officer (DRO) decision on appeal, the DRO determined that there was CUE in the December 2015 rating decision and severed service connection for the cause of the Veteran's death. Governing regulation provides that service connection will be severed only where evidence establishes that the initial award is clearly and unmistakably erroneous (the burden of proof being upon VA). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105 (d). The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is 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 a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). With respect to severance of service connection, the reviewable evidence is not limited to the evidence which was before the AOJ in making its initial service connection award. When revising a prior decision, VA may consider evidence subsequent to the original grant, and the severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous. See Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see also Allen v. Nicholson, 21 Vet. App. 54 (2007). In other words, in reviewing the propriety of the severance, VA is not bound solely by the evidence that was before the AOJ at the time it initially granted service connection. After a review of the evidence of record, the Board finds that the notice and due process requirements of 38 C.F.R. § 3.105 have been met. A rating proposing severance was issued in July 2017, and the appellant was notified of the RO’s intent to sever service connection for the cause of the Veteran's death by a letter dated in October 2017. She provided written argument in November 2017. She did not request a predetermination hearing regarding the issue. Final action to sever service connection for the cause of the Veteran's death was taken pursuant to 38 C.F.R. § 3.105 (d) in a March 2018 rating decision, with termination effective June 1, 2018. The termination was made effective no sooner than permitted by current law and regulations (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105 (d). The appellant has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the termination of service connection for the cause of the Veteran's death. In assessing the propriety of the AOJ’s decision to sever service connection for the cause of the Veteran's death, the Board will consider all the evidence of record to determine whether the initial award is clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (d); Stallworth, supra. At the time of the December 2015 rating decision that granted service connection for the cause of the Veteran's death, the AOJ considered his medical records, a copy of his death certificate, which is written in German, and a copy of a Report of Death, which was issued by the U.S. Department of State, is written in English, and lists his cause of death as “Natural causes.” The Veteran's German death certificate is a typewritten form with information that is handwritten. A November 2015 deferred rating decision indicated that a VA employee, N.C., was fluent in German, that the German documents on file needed to be translated, and that N.C. should review the file before discussing the case with the DRO. A December 2015 translation of the official death certificate from German to English is associated with the file and signed by N.C., a VA employee. This translation shows that the Veteran died in November 2014, and the cause of death was as follows: ischemic cardiomyopathy, heart insufficiency due to coronary insufficiency, dementia, brain atrophy, overall body decline and natural causes. N.C. noted that the other death certificate on file is in English but only showed “natural causes” as the cause of his death. As noted above, the AOJ subsequently obtained a second translation of the German death certificate from a contracted translation company in May 2017. That translation noted that the “Nature” of the Veteran's death was natural. In the section of the form entitled “Cause of Death/Clinical,” several words were not translated. In the key section of the form, pertaining to the illness directly contributing to death, the translator merely wrote “a) [illegible] Cause of Death.” In the section of the form for prior illnesses directly contributing to the cause of death including original cause (underlying illness), the translator wrote “b) [illegible] Global heart insufficiency with coronary insufficiency” and “c) Heart insufficiency caused by CHD.” In the section of the form for other significant illnesses, the translator wrote “Dementia, atrophied brain.” In the section of the form pertaining to information about the cause of death and accompanying illness, the translator wrote: “Increased physical deterioration, [illegible].” The AOJ’s December 2015 rating decision granted service connection for the cause of the Veteran's death based on the Veteran's service in Vietnam, his medical records and his death certificate showing that his primary cause of death was ischemic cardiomyopathy, a type of ischemic heart disease, a presumptive service-connected condition based on the Veteran's presumed in-service exposure to an herbicide agent. At the time of the December 2015 rating decision, evidence of record also included a July 2010 VA examination in which an echocardiogram was performed. The examiner diagnosed in pertinent part, arterial hypertension, dilatative cardiomyopathy with cardiac insufficiency, calcified aortic valve sclerosis with insufficiency/stenosis, moderately severe mitral insufficiency, tricuspid insufficiency with pulmonary HTN, absolute arrythmia, and calcified atherosclerosis of the carotids. A November 2010 VA medical opinion indicated that the Veteran’s dilative cardiomyopathy with cardiac insufficiency was not ischemic heart disease or coronary artery disease. In the March 2018 DRO decision on appeal, the DRO determined that there was CUE in the December 2015 rating decision because the decision maker read the cause of death in the untranslated death certificate as ischemic cardiomyopathy. The DRO concluded that the decision was made prematurely, as the death certificate should have been officially translated and a medical opinion should have been requested. The DRO noted that a subsequent translation of the death certificate was obtained in May 2017, and the translation listed the cause of death as natural causes and global heart insufficiency caused by congestive heart failure. The Board finds that this is incorrect. In fact, the May 2017 translation lists the nature of the Veteran’s death as natural, and lists the primary cause of death as “[illegible].” In other words, the May 2017 translation does not include a translation of the primary cause of the Veteran's death. The March 2018 rating decision which severed service connection is also based on VA medical opinions dated in May 2017 and July 2017, which are based in part on the November 2010 VA medical opinion and on the May 2017 incomplete translation of the death certificate. The VA examiner stated that there is no evidence in the record that the Veteran's dilative cardiomyopathy was ischemic in etiology. In the March 2018 rating decision, the AOJ found that there was no evidence that the Veteran's death was causally or etiologically related to military service, and no evidence that a service-connected disability was either the principal or a contributory cause of death. Essentially, although the AOJ did not explicitly state this, the AOJ determined that the December 2015 rating decision was clearly and unmistakably erroneous because there was an incorrect translation of the Veteran's death certificate, and because the Veteran's type of heart disease was not a disease subject to presumptive service connection based on exposure to an herbicide agent. After a review of the evidence of record, the Board finds that the AOJ did not properly establish that there was CUE in the December 2015 rating decision. There is no indication that the correct facts, as they were known at the time, were not before the adjudicator, and it is not established that there was undebatable error. The record reflects that the VA employee who first translated the German death certificate is fluent in German, and she translated the primary cause of the Veteran's death in his death certificate as ischemic cardiomyopathy. In contrast, the May 2017 translator failed to translate the primary cause of his death listed on his death certificate. The May and July 2017 negative VA medical opinions are explicitly based on the incomplete May 2017 translation of the death certificate. Finally, the claims file contains April 2019 translations of German private medical records submitted by the appellant. These translations are signed by N.C., the same VA employee who initially translated the death certificate. Her title is listed as “PMC German Translator.” The Board finds that her competence to translate German documents has been established. One of these private medical records is a February 2019 letter from the Veteran's former private physician, Dr. U.K., who stated that the Veteran “had severe global heart insufficiency with atrial fibrillation, the cause could have been ischemic cardiomyopathy or cardiomyopathy. Regrettably a cardiologist report is not here.” The Board finds that the AOJ, prior to severing service connection, did not obtain a medical opinion showing that in light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous, as required by governing regulation. The evidence does not establish that the December 2015 rating decision was undebatably erroneous in concluding that the primary cause of the Veteran's death was ischemic cardiomyopathy, which is a disease subject to presumptive service connection based on exposure to an herbicide agent in service. Noncompliance with the provisions of 38 C.F.R. § 3.105 (d) prior to severance renders the severance of service-connection for the cause of the Veteran’s death void. Accordingly, the benefit is restored. 38 U.S.C. §§ 1110, 5112(a); 38 C.F.R. §§ 3.105 (d). Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.