Citation Nr: 21069482 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-52 955 DATE: November 18, 2021 ORDER Entitlement to an effective date earlier than August 22, 2014, for the award of service connection for cause of death, to include whether a March 2013 rating decision denying entitlement to service connection for the Veteran's cause of death should be revised or reversed based on clear and unmistakable error (CUE), is denied. FINDINGS OF FACT 1. In a March 2013 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to service connection for the Veteran's cause of death. The appellant was notified of the March 2013 rating decision in an April 25, 2013 notification letter; it is presumed that she was adequately notified of the decision and her right to appeal. She did not file a notice of disagreement or submit new and material evidence within the appeal period, and the rating decision became final. 2. The correct facts, as known at the time, were before the VA adjudicators in March 2013 and the statutory and regulatory provisions extant at the time were correctly applied. 3. The appellant filed an application to reopen a claim of entitlement to service connection for cause of the Veteran's death on August 22, 2014. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than August 22, 2014, for the award of service connection for cause of death, to include whether a March 2013 rating decision denying entitlement to service connection for the Veteran's cause of death should be revised or reversed based on CUE, have not been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1955 to April 1977. Unfortunately, he died in March 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by VA. More specifically, the RO denied the appellant's request to revise a prior rating decision denying entitlement to service connection for the Veteran's cause of death, effectively denying an effective date for service connection prior to August 22, 2014. The appellant filed a broad notice of disagreement and has argued non-finality of the March 2013 rating decision, which is a question of law and fact that must be decided to reach the CUE claim and was generally addressed in the September 2017 Statement of the Case (SOC). Thus, the general issue of entitlement to an earlier effective date under 38 U.S.C. § 5110. In July 2021, the appellant testified before the undersigned at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Clear and Unmistakable Error The record indicates that the Veteran filed claims for service connection for various disabilities, including coronary artery disease (CAD), which were pending prior to his death in March 2012. His death certificate reflected that the cause of death was cardiopulmonary arrest, while an underlying cause was squamous cell carcinoma of the palate. CAD was not mentioned. Within one year of his death, the appellant filed a claim for Dependency and Indemnity Compensation (DIC) benefits. Subsequently, in a March 2013 rating decision, the RO granted service connection for CAD, as well as a chest scar, from August 24, 2010. Various other claims, including the claim for service connection for the Veteran's cause of death, were denied. Subsequently, the appellant submitted a request to reopen the claim for his cause of death that was received on August 22, 2014. Although the RO initially denied her request to reopen the claim in a December 2014 rating decision, it later reopened the claim and granted service connection for the Veteran's cause of death from August 22, 2014, in a July 2016 rating decision. The RO based its decision on various evidence, including several medical records received between 2014 and 2016 and a July 2016 medical opinion. The medical opinion indicated that his service-connected CAD contributed substantially to his death. The appellant subsequently submitted a CUE motion that stated that an earlier effective date was warranted for entitlement to service connection for the cause of her husband's death, as the evidence used to grant service connection for CAD was in the record when the RO initially denied her claim. In a notice of disagreement submitted in August 2017, she also argued that it should have been clearly evident from the Veteran's death certificate that his death was related to CAD caused by herbicide agent exposure. Additionally, at her July 2021 hearing, she clarified that she believed there was CUE in the March 2013 rating decision because VA should have requested a medical opinion on the Veteran's cause of death but did not. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, the March 2013 rating action denied a claim for service connection for the Veteran's cause of death. An April 25, 2013 RO letter advised the appellant of the denial and her appellate rights. The appellant did not file a timely notice of disagreement challenging this determination, nor did she submit new evidence and material evidence within one year of the notice of decision. Thus, the March 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. The Board notes that the appellant and her representative have argued that she never received notice of the March 2013 rating decision, which is essentially an argument that the March 2013 rating decision did not become final because of a lack of proper notice. More specifically, she has testified that she was not sure whether she had ever received a notification letter, but that if she had received one, she would have taken it to her representative and filed a timely notice of disagreement. To that end, the failure of a claimant or his representative to receive notice of a rating decision can render a decision non-final. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim will be considered to be pending if VA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Absent clear evidence to the contrary, there is a presumption that public officers have properly discharged their official duties. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). However, the presumption of regularity of the mailing of decisions can be rebutted in certain situations. For instance, the presumption of regularity is rebutted if there is evidence showing an incorrect address was used or that the notice was returned as undeliverable. See, e.g., Crain v. Principi, 17 Vet. App. 182, 188 (2003). An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing processes. Jones v. West, 12 Vet. App. 98, 102 (1998). Where the presumption of regularity is rebutted, the burden shifts to VA to show that normal mailing practices were followed. Here, the presumption of regularity has not been rebutted. The record reflects that the appellant filed her claim for DIC benefits in May 2012, shortly after the Veteran's death in March 2012. Her claim was denied in a March 2013 rating decision. A March 2013 report of general information, which was generated after the March rating decision was issued but before a notification letter had been sent, indicates that the appellant made a telephone call to VA to update her current address. The updated address she provided in that call is the same address listed on an April 25, 2013 notification letter informing her that her DIC claim had been denied. This notice letter indicated that encloses included the "Rating Decision" as well as "VA Form 4107" (her appeal rights). The Board notes that, because the appellant had not yet filed a form with VA to appoint a representative, the notification letter was only sent to the appellant. Although the appellant is not certain that she received a notification letter, the correct address was included on the letter and there is no indication in the file that it was returned as undeliverable. Besides the appellant's assertion of nonreceipt, there is simply no evidence in the record showing that the notification letter was sent to the wrong address or returned as undeliverable. As such, the presumption of regularity has not been rebutted, and the finality of the March 2013 rating decision has not been vitiated. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments advanced by the appellant allege CUE in the March 2013 rating decision with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of her claim. Before turning to the merits, however, the Board will review the relevant evidence before the RO at the time of the March 2013 rating decision, as well as the applicable law. At the time of the March 2013 rating decision, the relevant evidence before the RO included the Veteran's death certificate, service treatment records, and military personnel records. The record also contained various private treatment records from Dr. S.S., Sierra View District Hospital, Selma Community Hospital, Kaweah Delta Medical Center, Central Valley Minimally Invasive Surgery Center, All Saint's Subacute and Rehabilitation, Kindred Hospital, Lemoore and Oakland Naval Hospital, David Grant Medical Center, Sutter Gould Medical Foundation, and Stanford Hospital and Clinics. Although service treatment records show in-service complaints of chest pains, results of an April 1977 electrocardiogram report were normal, and his April 1977 separation examination did not reflect any cardiovascular abnormalities. However, his service treatment and personnel records reflect that he served in the Republic of Vietnam during the Vietnam War, indicating that exposure to herbicide agents was presumed. Private treatment records documented several years of treatment for conditions such as CAD and complications related to squamous cell carcinoma of the palate. The records also include an August 2011 letter from Dr. D.H. of the Sutter Gould Medical Foundation, which simply states that the Veteran was disabled due to "terminal cancer." Importantly, the record did not contain any medical records or opinions related to his death in March 2012 or otherwise indicating that a service-connected condition principally caused or contributed to his death. Then, as now, the relevant legal provisions provided that VA death benefits were payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.5, 3.312 (2013). In order to establish service connection for the cause of a veteran's death, the evidence had to 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 (2013). To constitute the principal cause of death, the service-connected disability had to be one of the immediate or underlying causes of death or be etiologically related to the cause of death. To be a contributory cause of death, it had to be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It was not sufficient to show that the service-connected disability shared in producing death, but rather it had to be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c) (2013). If the evidence showed that the veteran died of a disorder that was ultimately related to his military service, the regulations did not require a service-connected disability to be the primary cause of death, but rather to be "etiologically related" or "causally connected." 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2013). Having carefully reviewed the evidence in the record before the RO at the time of the March 2013 rating decision, the Board finds that it contains no CUE of fact or law that manifestly changed the outcome of the decision. For instance, the RO listed the evidence that it considered within the March 2013 rating decision, including various private treatment records and service records. As such, it cannot be said that the RO had the incorrect facts before it at the time. To the extent the RO did not discuss specific statutory or regulatory provisions in the rating decision, this is harmless error, as the outcome would not have been obviously and manifestly different. Indeed, the evidence before the RO at the time did not contain an opinion or other medical evidence that established that the Veteran's CAD was the principal or contributory cause of his death. Although the evidence at the time indisputably showed that his CAD was service-connected, and although he died in part due to cardiopulmonary arrest, it simply cannot be said that it was undebatable that the principal or contributory cause of his death was a disability incurred in or aggravated by service. To that end, cardiopulmonary arrest is not the same condition as CAD, and there were no medical records or medical opinions in the record in March 2013 that explicitly linked his CAD to his death. Additionally, service treatment records do not indicate that cardiopulmonary arrest had its onset during his service. The appellant essentially argues that the definition of cardiopulmonary arrest, in and of itself, implicates CAD as a cause of death. Cardiac arrest is defined as "sudden cessation of the pumping function of the heart with disappearance of arterial blood pressure, connoting either ventricular fibrillation or ventricular standstill." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 121 (28th ed. 1994). Cardiopulmonary means "pertaining to the heart and respiration." Id. at 268. Thus, the evidence showed that the Veteran died to a cessation of heart and respiration but the cause for this cessation was not shown to be CAD. Rather, the death certificate itself identified the stoppage of the Veteran's heart and respiration as due to squamous cell carcinoma of palate. This is consistent with the evidence in the record from shortly before the Veteran died stating that he had been diagnosed with terminal cancer, which the RO determined was not service-connected. There was not undebatable evidence that the Veteran's cessation of heart and respiration was due to CAD. There was thus a legitimate question as to whether his death was related to a service-connected disability at the time of the March 2013 rating decision, and it was within the province of a reasonable adjudicator to conclude that it was not. The Board acknowledges the appellant's contentions that the RO failed to obtain a medical opinion regarding the Veteran's cause of death or otherwise failed to fully discharge its duty to assist. Nevertheless, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. Consequently, the Board finds that the March 2013 rating decision was not clearly and unmistakably erroneous and no revision is warranted. The Board also acknowledges that the record clearly showed at the time of the March 2013 rating decision that the Veteran's CAD was presumptively linked to his exposure to herbicide agents in Vietnam. Nonetheless, the record before the adjudicator in March 2013 did not contain a medical opinion linking his death from cardiopulmonary arrest and squamous cell carcinoma of the palate to his service-connected CAD, and the RO would have been prohibited from substituting its own medical judgment for that of medical professionals. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). Moreover, even though DIC benefits were eventually granted based in part on evidence that was later added to the record, such as additional private medical records and the July 2016 VA medical opinion, this evidence was not in the record at the time of the March 2013 rating decision. A determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the March 2013 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). Essentially, the appellant's argument is a disagreement as to how the facts were weighed or evaluated by the adjudicator. However, "[i]t is the prerogative of the factfinder. . .to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. In sum, the Board finds that the March 2013 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the adjudicators correctly applied existing legal authority. There is no undebatable error that is shown that would have manifestly changed the outcome of the rating decision. The Board is sympathetic to the appellant's contentions but is bound by the relevant statutory and regulatory provisions. As such, the motion to revise the March 2013 rating decision must be denied. As a final matter, the Board has considered whether an earlier effective date for DIC benefits is warranted on a non-CUE basis. However, the earliest effective date permissible by law has already been awarded. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. With respect to service connection for cause of death, the effective date for the grant of service connection for death based upon an original claim or a claim reopened after final disallowance is generally (1) the day following the death, or (2) the date entitlement arose if a claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). At the time that these amendments were made, VA also deleted a regulation that allowed various documents to be considered informal claims. Notably, prior to the date the amendments became effective, a report of examination or hospitalization could be accepted as an informal claim for benefits in claims for an increased disability rating or to reopen a claim after a final disallowance. See 79 Fed. Reg. 57,660, 57,675 (Sept. 25, 2014) (removing then-current 38 C.F.R. § 3.157(b)). Here, as set forth above, the appellant filed an initial claim for DIC benefits within one year of her husband's death, but this claim was denied in March 2013 and notice of the denial was sent April 25, 2013. She did not submit a notice of disagreement, nor did she submit any new evidence prior to August 22, 2014, regarding her claim. Moreover, the record does not indicate that she submitted any formal or informal claims to reopen her claim prior to August 22, 2014. As such, the earliest effective date allowable by law (i.e., August 22, 2014) has already been assigned. T. Mainelli Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.