Citation Nr: 21062122 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-44 164 DATE: October 6, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. FINDING OF FACT At the time of his death, the Veteran was not a former prisoner of war (POW) and was not in receipt of or entitled to receive compensation at the 100 percent rate due to a service-connected disability or disabilities for a period of a least five years immediately after his discharge from active service or for 10 continuous years prior to his death. CONCLUSION OF LAW The criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1969 to May 1972. He died in August 2016. The appellant in this matter is the Veteran's surviving spouse. As an initial matter the Board expresses its condolences to the appellant for the loss of her spouse and recognizes the valuable service he provided to the United States through his service in the Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In her August 2017 substantive appeal (VA Form 9), the appellant requested a Board hearing; however, in September 2021 written correspondence, she withdrew her request for a Board hearing. As such, the Board will proceed with addressing the issues on appeal. Entitlement to DIC under 38 U.S.C. § 1318 As discussed further below, the Board is remanding the issue of entitlement to service connection for the Veteran's cause of death for additional development. The Board notes that such development has no bearing on the adjudication of the issue of entitlement to DIC benefits under 38 U.S.C. § 1318, which may be determined as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied due to a lack of legal merit). Therefore, the Board may proceed with final adjudication of this issue. Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service-connected, if the veteran died not as the result of his own willful misconduct and the veteran was, at the time of his death, either in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of 38 U.S.C. § 1318, "entitled to receive" means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because; (1) VA was paying the compensation to the veteran' s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (7) 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. Claims under 38 U.S.C. § 1318 are adjudicated based on decisions rendered during the veteran's lifetime. 38 C.F.R. § 20.1106. In this regard, claims for DIC benefits under 38 U.S.C. § 1318 must be adjudicated without consideration of hypothetical entitlement for benefits raised for the first time after a veteran's death. See, e.g., Rodriguez v. Peake, 511 F.3d 1147 (2008). As a result, the Board need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating. In the present case, the Veteran was discharged from active service in May 1972, and he died in August 2016. At the time of his death, the Veteran was in receipt of a 100 percent rating for amnestic disorder associated with temporal lobe seizure disorder from March 13, 2007, and a 10 percent rating for temporal lobe seizure disorder from May 26, 1972. Accordingly, the Veteran was not continuously rated totally disabled for a period of a least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. As the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met and it is undisputed that the Veteran was not a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis, 6 Vet. App. at 430. The Board has carefully considered the appellant's argument that the Veteran was entitled to a 100 percent rating earlier than March 13, 2007, for his service-connected amnestic disorder. Specifically, she argues that the evidence shows the Veteran experienced impaired memory prior to March 13, 2007, and that the effective date of the Veteran's 100 percent rating should be earlier. Review of the evidence of record reveals that service connection for a disorder manifested by impaired memory, comprehension, focus and physical coordination, to include as secondary to the service-connected seizure disorder, was denied in a March 2004 rating decision. The Veteran did not appeal this decision, nor did VA receive new and material evidence within the applicable one-year appeal period. Therefore, the March 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Thereafter, the Agency of Original Jurisdiction (AOJ) granted service connection for amnestic disorder in a July 2007 rating decision and assigned an initial evaluation of 100 percent, effective March 13, 2007. The Veteran did not appeal this decision nor was new and material evidence received within the applicable one-year appeal period. Therefore, the July 2007 rating decision also became final. The Board notes that previous determinations which are final and binding, including decisions of the assignment of disability ratings, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they are known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-1 (1992) (en banc). Conversely, a mere difference of opinion in the outcome of the prior adjudication, including insofar as how the evidence was weighed or evaluated, or a failure in the duty to assist, are not grounds for a finding of CUE. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Luallen v. Brown, 8 Vet. App. 92 (1995). The Court of Appeals for Veterans Claims (Court) has also barred claimants from seeking to disturb the finality of a prior rating decision by filing a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, the Board finds that the appellant has not raised a specific allegation of CUE to any previous final rating decision. See Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002) (noting that any claim of CUE must be pled with specificity). To the extent that the appellant's DIC claim under 38 U.S.C. § 1318 is based on an assertion of CUE in the July 2007 rating decision that assigned an effective date of March 13, 2007, for the 100 percent rating for amnestic disorder, the Board finds that she cannot bootstrap a CUE claim onto a procedurally deficient earlier effective date claim. The appellant's earlier effective date claim is deficient procedurally because it cannot be used to collaterally attack a prior final rating decision and, to the extent that an earlier effective date claim is included as part of her DIC claim under 38 U.S.C. § 1318, that claim must be dismissed pursuant to Rudd. In Rudd, the Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Thus, the appellant cannot rely on this procedurally deficient earlier effective date claim in order to get any vague and unsubstantiated CUE claim adjudicated by the Board as part of her DIC claim under 38 U.S.C. § 1318. Here, the Veteran did not appeal the July 2007 rating decision that granted service connection for amnestic disorder and assigned a 100 percent rating effective March 13, 2007, nor did he indicate any dissatisfaction with this effective date prior to his death. Therefore, there was no claim concerning the July 2007 rating decision pending at the date of the Veteran's death that would overcome the law that states that veterans' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236 (1996); see also 38 C.F.R. § 20.1302. He also did not submit any statements, nor did VA receive new and material evidence concerning his claim, within one year of the July 2007 rating decision that would render the decision non-final for VA purposes under 38 C.F.R. § 3.156 (b). See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Again, the July 2007 rating decision cannot be collaterally attacked by filing a freestanding earlier effective date claim. Accordingly, the Veteran was not in receipt of a 100 percent rating for the 10-year period immediately preceding his death. In summary, although the Board is sympathetic to the appellant's argument, the criteria for DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have not been met and the claim is denied due to lack of entitlement under the law. See Sabonis, 6 Vet. App. at 430. The Board finally observes that it lacks the authority to grant claims on an equitable basis; instead, it is constrained to follow specific provisions of law. See 38 U.S.C. § 7104 (West 2014); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). REASONS FOR REMAND Entitlement to service connection for cause of death Upon review of the record, additional development is necessary prior to final adjudication of the remaining issue on appeal. In this regard, there appears to be outstanding VA treatment records that have not been associated with the claims file. Specifically, on her November 2016 application for benefits, the appellant indicated that the Veteran received treatment at the Martinez VA Medical Center (VAMC) from March 2016 to August 2016, the Mather VAMC from the 1990s to 2016, and from the Chico VA outpatient clinic from the 1990s through 2016. See November 2016 VA Form 21-534. Although VA treatment records were added to the claims file, these medical records only contain a 2017 medical inquiry, after the Veteran's death, and a November 1999 treatment record. As such, almost no VA medical records dated after 2007 have been included in the claims file. Significantly, the Veteran's death certificate lists his place of death at the VA Northern California Healthcare System. As there are outstanding VA medical records that may be relevant to the issue on appeal, a remand is warranted for the AOJ to obtain and associate these outstanding records with the claims file. Additionally, although the evidence reflects that the Veteran was denied Social Security Administration (SSA) benefits, there are no SSA records associated with the claims file. See April 2007 SSA Inquiry. As any SSA medical records may be relevant to the claim, on remand, the AOJ must attempt to obtain any such records. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain and associate with the claims file any outstanding VA treatment records, to include any VA treatment records from the Martinez VAMC from March 2016 to August 2016, the Mather VAMC from the 1990s to 2016, and from the Chico VA outpatient clinic from the 1990s through 2016. The Veteran's death certificate indicates he received treatment at the VA Northern California Healthcare System. If the requested records do not exist, such should be documented in the claims file. 2. Obtain and associate with the claims file any medical records in possession of the SSA. Make a notation in the claims file of all attempts to obtain these records and all responses received. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.