Citation Nr: 21062093 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 200106-54380A DATE: October 6, 2021 ORDER The November 18, 2020 Board of Veterans' Appeals (Board) decision, having been found to be clearly and unmistakably erroneous in denying entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death, is revised to reflect a grant of DIC based on service connection for the cause of the Veteran's death. FINDINGS OF FACT 1. In a final decision dated November 18, 2020, the Board denied entitlement to DIC based on service connection for the cause of the Veteran's death. 2. The November 18, 2020 Board decision contained legal and factual errors in denying entitlement to DIC based on service connection for the cause of the Veteran's death. 3. But for the legal error in the November 18, 2020 Board decision, the outcome would have been manifestly different and the claim of entitlement to entitlement to DIC based on service connection for the cause of the Veteran's death would have been granted. CONCLUSION OF LAW The November 18, 2020 Board decision denying entitlement to DIC based on service connection for the cause of the Veteran's death was clearly and unmistakably erroneous and is revised to grant entitlement to DIC based on service connection for the cause of the Veteran's death. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. Unfortunately, he died in December 2018. The appellant in the November 18, 2020 Board decision was the Veteran's surviving spouse. This matter is currently before the Board on the Board's own October 2021 motion for revision or reversal on the grounds of CUE in the November 18, 2020 Board decision that denied entitlement to DIC based on service connection for the cause of the Veteran's death. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20. CUE is a very specific and 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether 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). Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the Board, on its own motion, alleges CUE in a November 18, 2020, Board decision that denied entitlement to DIC based on service connection for the cause of the Veteran's death. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of this decision were the same as they are now. DIC is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service connected disability apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). As noted above, the Veteran died in December 2018. The death certificate identified the cause of the Veteran's death as complications of acute cocaine and opiate toxicity. The death certificate indicated that the manner of death was an accident due to use of illicit narcotics. The death certificate was certified by a deputy coroner, and no autopsy was performed. At the time of the Veteran's death, he was in receipt of service connection for posttraumatic stress disorder (PTSD). During the Veteran's lifetime, he was also diagnosed with opiod use disorder. See July 2016 VA PTSD examination report; June 2017 VA treatment note. In addition, the July 2016 VA examiner opined that the Veteran's opiod use disorder represents an effort to cope with PTSD, thus indicating that the opiod use disorder is secondary to the PTSD. There was no contrary opinion of record at the time of the November 18, 2020 Board decision. Thus, the Board made errors of fact and law in the November 18, 2020, decision by denying entitlement to DIC based on service connection for the cause of the Veteran's death. Here, it is clear and unmistakable that the Veteran's opiod use disorder was secondary to his service-connected PTSD, and that such opiod use was his principal cause of death. This is supported by the July 2016 VA examiner's opinion, and there is no contrary opinion or evidence of record at the time of the November 18, 2020 Board decision. Thus, the Board made errors of fact and law in denying entitlement to DIC based on service connection for the cause of the Veteran's death. Thus, after considering the evidence of record at the time of the November 18, 2020, Board decision, the Board finds clear and unmistakable legal error in the Board's November 18, 2020, decision that denied entitlement to DIC based on service connection for the cause of the Veteran's death, as the statutory and regulatory provisions extant at the time were not applied. Moreover, had the legal and factual errors discussed above not been committed, the outcome of the November 18, 2020 Board decision would have been manifestly different, i.e., entitlement to DIC based on service connection for the cause of the Veteran's death would have been granted. In sum, Board decision is clearly and unmistakably erroneous; therefore, the November 18, 2020, Board decision should be revised, resulting in an award of entitlement to DIC based on service connection for the cause of the Veteran's death. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1402-1404. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.