Citation Nr: 20007339 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 16-37 177 DATE: January 29, 2020 ORDER The severance of service connection for the cause of the Veteran’s death being improper, restoration of service connection is granted. An effective date of April 12, 2013, for the award of service connection for the cause of the Veteran’s death, is granted.   FINDINGS OF FACT 1. There is not clear and unmistakable evidence establishing that the cause of the Veteran’s death was not related to exposure to environmental hazards in service, including Agent Orange exposure. 2. On April 12, 2013, the appellant filed an informal claim to reopen a claim of service connection for the cause of the Veteran’s death, and filed a formal claim within one year. CONCLUSIONS OF LAW 1. The severance of service connection for the cause of the Veteran’s death was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105; 38 C.F.R. § 3.312. 2. The criteria for an earlier effective date of April 12, 2013, but no earlier, for the award of service connection for the cause of the Veteran’s death, are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1970. He died in February 1991. The appellant is his surviving spouse. The case is on appeal from a May 2014 rating decision granting service connection for the cause of the Veteran’s death. Also on appeal is an April 2016 rating decision severing service connection for the cause of the Veteran’s death. In November 2019, the appellant testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Whether the severance of service connection for the cause of the Veteran’s death was proper. A May 2014 rating decision granted service connection for the cause of the Veteran’s death. The RO found that the Veteran served in the Republic of Vietnam, so his exposure to herbicides was presumed. The RO also found that the Veteran’s cause of death, chronic myelogenous leukemia (CML), was a presumptive herbicide-related condition. A November 2015 rating decision proposed to sever service connection. The RO found that the grant of service connection was clear and unmistakable error (CUE) because CML is not a disability recognized as presumptively due to Agent Orange exposure. The RO found that the condition was not otherwise incurred in service or within one year of service separation. The RO also found that there was no other basis to award service connection for the cause of the Veteran’s death due to a different medical condition. The April 2016 rating decision finalized the severance effective July 1, 2016. The RO reiterated the reasons for the severance as set forth in the November 2015 proposed decision. As she testified at her November 2019 Board hearing, the appellant maintains that this severance was improper because there is evidence support service connection. A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). 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). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). B. Discussion In this case, the Board finds that the severance of service connection was improper. There is conflicting, but not clear and unmistakable evidence as to the relationship between the cause of the Veteran’s death and his service. This conflicting evidence presents a reasonable disagreement as to such, and reasonable minds could disagree as to the ultimate determination. However, this determination, at this point, amounts to no more than a disagreement as to how to weigh the facts. In context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. Accordingly, the severance of service connection was improper and restoration of service connection for the cause of the Veteran’s death is warranted. 2. An effective date earlier than April 10, 2014, for the grant of service connection for the cause of the Veteran’s death. The current effective date for the award of service connection for the cause of the Veteran’s death is April 10, 2014. The appellant maintains that an earlier effective date is warranted. She wrote in her April 2015 notice of disagreement (NOD) that she originally filed a claim upon the Veteran’s death. That claim was denied, and she submitted a second claim in April 1994, which was also denied. She then submitted the April 2014 claim within one year of an original RO letter dated in April 2013. A. Applicable Law The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400(r). B. Discussion The appellant initially contends that she filed an original claim upon the Veteran’s death. The claims file shows that she filed a VA Form 21-530 Application for Burial Benefits, in March 1991. (She also filed a VA Form 90-2008, Application for United States Flag for Burial Purposes, at that time.) The RO denied a service-connected burial allowance in a March 1991 decision. The RO found that the evidence did not show that the Veteran’s death resulted from service-connected disease or injury, so a service-connected burial allowance could not be paid. The Board finds that there was no cause of death claim at this point. The appellant next filed a VA Form 21-534, Application for Dependency and Indemnity Compensation, in March 1994, which the Board finds is the initial cause of death claim. The RO first denied the claim in a June 1994 rating decision. In response, the appellant filed a statement several days later in June 1994 that is not construed as an NOD. She indicated that she was submitting medical releases for the Veteran’s medical records. Those medical records were received in July 1994. The RO properly addressed the new evidence and issued a second rating decision in August 1994 again denying the claim. The RO sent her notice of his decision in August 1994 to her then current mailing address of record. Within one year, the appellant submitted two statements, both seemingly received in July 1995. The Board finds that correspondence does not constitute an NOD as it was an inquiry into how a claim could be granted. It also did not contain any new and material evidence. In August 1995, the RO sufficiently responded to the inquiry. Subsequently, there is some correspondence in the file, but none meets the standard for an informal claim. See 38 C.F.R. § 3.155 (prior to March 24, 2015 requirement of filing on standard forms). That is, until an April 12, 2013 report of contact recording that the appellant was establishing a claim to reopen the claim of service connection for the cause of the Veteran’s death. She then submitted her formal application on April 10, 2014, which was within one year. As such, instead of the April 10, 2014 date, the effective date should have been the date of the claim to reopen of April 12, 2013. In sum, an earlier effective date of April 12, 2013, for the award of service connection for the cause of the Veteran’s death is warranted as an informal claim to reopen was received on April 12, 2013, with a formal claim being filed within one year. However, the preponderance of the evidence is against an even earlier effective date. The prior claims had been finally denied without an appeal and there is no claim to reopen until April 12, 2013. Thus, the benefit-of-the-doubt doctrine is not applicable and an even earlier effective date is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.