Citation Nr: A21018231 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 200513-84344 DATE: November 15, 2021 ORDER Entitlement to an effective date prior to January 1, 2014 for the award of dependency and indemnity compensation (DIC) based on the grant of service connection for the cause of the Veteran's in-service death, to include on the basis of clear and unmistakable error (CUE), is denied. FINDINGS OF FACT 1. In an August 2007 decision, the agency of original jurisdiction (AOJ) denied entitlement to DIC based on service connection for the cause of the Veteran's in-service death, finding that the Veteran's death was the result of his own willful misconduct. The Veteran's spouse did not file a notice of disagreement with the August 2007 decision within one year, nor was any new and material evidence received within one year. 2. The August 2007 decision, did not contain undebatable error of fact or of law that existed at the time of the adjudication that would have manifestly changed the outcome of that determination. 3. In December 2013, VA received the appellant's application to reopen the claim for entitlement to DIC. 4. A January 2019 Board decision reopened the claim for entitlement to DIC, and granted service connection for the cause of the Veteran's in-service death, concluding that the evidence was in relative equipoise as to whether the Veteran's death was the result of his own willful misconduct. 5. A February 2019 decision issued by the AOJ implemented the January 2019 Board decision, assigning an effective date of January 1, 2014 for the award of DIC. CONCLUSIONS OF LAW 1. The August 2007 decision that denied service connection for the cause of the Veteran's in-service death and entitlement to DIC is final, and was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The criteria for an effective date prior to January 1, 2014 for the award of service connection for the cause of the Veteran's in-service death and entitlement to DIC have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2005 to February 2007. Unfortunately, the Veteran passed away on active duty in February 2007. The appellant is the guardian of the Veteran's surviving child. The VA decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant's attorney elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 decision on appeal. 38 C.F.R. § 20.301. An effective date prior to January 1, 2014 for the award of DIC based on the grant of service connection for the cause of the Veteran's in-service death, to include on the basis of CUE, is denied. This matter was previously before the Board in April 2020, at which time the appeal was remanded for the AOJ to adjudicate the appellant's claim of CUE in the first instance. See March 2019 notice of disagreement; see also June 2019 VA Form 9. Pursuant to the Board remand, the AOJ issued a decision in April 2020, which found that an August 2007 VA decision denying entitlement to DIC did not contain CUE. As noted above, the appellant requested Direct Review by the Board of the April 2020 decision issued under the AMA. For the reasons discussed further below, the Board finds that an effective date prior to January 1, 2014 for the award of DIC, to include on the basis of CUE, is not warranted. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). Clear and unmistakable error is the kind of error, of fact or 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Id. In order to find CUE in a prior adjudication, the following three-prong test must be proved: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear an unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). Disagreement as to how the facts were weighed or evaluated is not CUE, nor is VA's failure to fulfill its duty to assist. Eddy v. Brown, 9 Vet. App. 52, 57 (1996); see also Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir. 2002). Here, the appellant filed a claim for DIC in August 2007 based on the in-service death of the Veteran. See August 2007 VA Form 21-534. DIC is a monthly payment to a surviving spouse, child, or parent because of a service-connected death. See 38 U.S.C. § 101(14). For the purposes of entitlement to DIC, the standards and criteria for determining whether or not a death is service-connected shall be those applicable under 38 U.S.C. Chapter 11. See 38 U.S.C. § 1310; see Myore v. Nicholson, 489 F.3d 1207, 1212 (Fed. Cir. 2007). Service connection under 38 U.S.C. Chapter 11 will not be found where the disability is the result of the veteran's willful misconduct or abuse of alcohol or drugs. See 38 U.S.C. § 1110 (pertaining to basic entitlement to wartime disability compensation). Therefore, DIC is not available for the survivors of a service member who dies while on active duty if the death was the result of the service member's own willful misconduct. See Myore, 489 F.3d at 1212. In this case, a February 27, 2007 Report of Casualty indicates the circumstances of the Veteran's death on active duty was "nonhostile," due to accidental drowning. See February 27, 2007 DD Form 1300. Service personnel records associated with the claims file in June 2007 include portions of the service department's investigation into the facts and circumstances of the Veteran's death. In April 2007, a memorandum from the Army's investigating officer recommended that the Veteran's death be found "not in the line of duty due to own misconduct." Evidence obtained during the course of the investigation revealed that the Veteran illegally obtained and ingested Valium and inhaled Difluoroethane (the gas found in Dust-Off). The investigating officer determined that these substances caused the Veteran's ability [to drive] to be severely impaired, and resulted in the tragic vehicle rollover accident that claimed the Veteran's life. Based on evidence from the scene of the vehicle rollover, the investigating officer determined that the vehicle veered into the curb alongside the road, going up and over the curb, and down the bank into the canal. See February 2007 memorandum. The investigating officer reported that there was five to six feet of dirt from the curb of the road to the canal, and that the curb should have alerted the driver that he had gone off the road. The investigating officer determined that the Veteran's driving ability was impaired by the substances he had ingested and inhaled. The Veteran was trapped inside the vehicle, which had rolled over and come to rest on its top in the canal that had approximately five feet of water in it, resulting in the Veteran's unfortunate drowning. The investigating officer reported there were no eye witnesses to identify that the Veteran was driving at the time of the accident; however, the Veteran was recovered from the driver's seat of the vehicle. The investigating officer determined that if the Veteran had not ingested Valium and inhaled Difluoroethane, his ability to drive would not have been impaired, and the accident would not have happened. The investigating officer noted that it was also possible that the Veteran could have died from illegally using Valium and Difluoroethane, regardless of whether or not he had been driving. See also March 2007 Memorandum for the Record (the medical officer indicated the toxicology report demonstrated the Veteran's ability to drive was impaired due to Valium alone, and with the Difluoroethane on top of that, it was quite possible that the Veteran may have had a seizure or cardiac arrest prior to the drowning). In June 2007, the service department determined that the Veteran's death as a result of the military vehicle rollover accident was "not in the line of duty due to own misconduct." See June 2007 Line of Duty Determination. In an August 2007 administrative decision, the appellant's claim for entitlement to DIC was denied on the grounds that the cause of the Veteran's in-service death was due to his own willful misconduct. See also August 2007 VA notification letter (providing notice of appellate rights). The August 2007 administrative decision considered the evidence discussed above. The August 2007 administrative decision noted that a death incurred during a period of active service is in the line of duty unless it was the result of the veteran's own willful misconduct. The August 2007 administrative decision referenced 38 C.F.R. § 3.1(n) (defining willful misconduct as an act involving conscious wrongdoing or known prohibited action, and involving deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences), as well as 38 C.F.R. § 3.301 (concerning specific applications of willful misconduct involving alcohol and drug use/abuse). The August 2007 administrative decision noted that the ultimate conclusion of the in-service administrative investigation was that the Veteran illegally ingested Valium and inhaled Dust-Off. The August 2007 administrative decision appears to have adopted the service department's finding that if the Veteran had not ingested and inhaled these substances, his ability to drive would not have been impaired, and the accident resulting in his death would not have happened. As such, the August 2007 administrative decision found that the Veteran's in-service death was due to his own misconduct. The appellant did not file a notice of disagreement with the August 2007 decision, nor was any new and material evidence received within one year. As a result, the August 2007 decision denying entitlement to DIC became final, and is only subject to reversal if it contains CUE. See 38 C.F.R. § 3.105(a). No other documents or correspondence were submitted by the appellant until the application to reopen the claim for entitlement to DIC was received in December 2013. See 38 C.F.R. § 3.400 (the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later). In connection with the December 2013 DIC application, the appellant's attorney argued that the Veteran's death was not a result of willful misconduct. See April 2018 argument in support of claim with associated statements from C.K. and A.B. The appellant's attorney argued that the Veteran sustained physical and mental injuries during his deployment. See also "The War Cry" by the Veteran. The appellant's attorney asserted that the Veteran's use of Valium and inhaling Dust-Off was for the purposes of self-medicating, and should not be deemed willful misconduct. In a January 2019 Board decision, the claim for entitlement to DIC was reopened and service connection for the cause of the Veteran's in-service death was granted. In applying the law to the particular facts of this case, the Board concluded the evidence was in relative equipoise as to whether the Veteran's in-service death was due to his own willful misconduct; therefore, the criteria for service connection for the cause of the Veteran's in-service death was granted. See 38 U.S.C. § 5107 (applying the benefit of the doubt to the appellant's claim). In reaching this determination, the Board referenced the service department's administrative investigation, which found that the Veteran's drug use caused his ability [to drive] to be severely impaired and resulted in the tragic accident. However, the Board noted that there were no eye witnesses to the accident, and the precise circumstances giving rise to the accident remained ambiguous. In a February 2019 decision, the AOJ implemented the Board's grant of service connection for the cause of the Veteran's in-service death. The AOJ awarded DIC from the first day of the month following the appellant's December 2013 application to reopen the claim for entitlement to DIC. In March 2019, the appellant's attorney asserted CUE with the August 2007 VA decision that denied entitlement to DIC on the grounds that the Veteran's in-service death was the result of his own willful misconduct. See March 2019 notice of disagreement. The appellant's attorney argued that there was "no evidence whatsoever that intoxication resulted proximately and immediately [in] the Veteran's death." See June 2019 VA Form 9. The appellant's attorney argued that the August 2007 decision incorrectly applied the law in determining that the Veteran died as a result of willful misconduct, and that the error was undebatable and made a difference in the outcome of the case. In March 2020 correspondence, the appellant's attorney argued that "clear and convincing evidence" is the standard to rebut the presumption that a wartime disability was the result of willful misconduct. See also May 2020 VA Form 10182 with associated argument. The appellant's attorney referenced 38 U.S.C. § 1154, which concerns service connection for any disease or injury incurred in active service as a result of engagement in combat with the enemy. Under 38 U.S.C. § 1154(b), service connection for such injury may be rebutted by clear and convincing evidence to the contrary. Citing to the January 2019 Board decision, the appellant's attorney argued that mere speculation alone cannot serve as a basis to rebut the presumption that the Veteran's in-service death was incurred in the line of duty and, in the absence of clear and convincing evidence, the VA can only conclude that the Veteran's death was not a result of his willful misconduct. See also May 2020 VA Form 10182 with associated argument (noting favorable findings are binding on all subsequent adjudicators within the VA system). The appellant's attorney argued that it was undebatable that the August 2007 VA decision failed to properly apply 38 U.S.C. § 105(a), and that, had VA not made the error, it would have manifestly changed the outcome at the time the decision was made. With respect to the assertion of CUE, the Board has considered whether the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. The Board acknowledges the attorney's assertion that there was "no evidence whatsoever that intoxication resulted proximately and immediately [in] the Veteran's death." The correct facts (as they were known at the time), and which were before the adjudicator at the time of the August 2007 administrative decision, include a toxicology report that revealed the Veteran had ingested Valium and inhaled Difluoroethane (the gas found in Dust-Off). In this case, the service department (whose findings appear to have been adopted by the AOJ) found that the preponderance of evidence demonstrated that if the Veteran had not ingested Valium and inhaled Difluoroethane, his ability to drive would not have been impaired and the accident would not have happened. The January 2019 Board decision found that the precise circumstances giving rise to the accident remained ambiguous, and resolving reasonable doubt in favor of the appellant, determined that Veteran's in-service death was not due to his own willful misconduct. The Board finds that the question of whether the Veteran's ingestion of these substances resulted proximately and immediately in the Veteran's death amounts to a disagreement as to how the facts were weighed and evaluated. See Eddy, 9 Vet. App. at 57 (disagreement as to how the facts were weighed or evaluated is not CUE). The Board recognizes that new and material evidence was received in April 2018 (in connection with the appellant's December 2013 application to reopen the DIC claim) in support of the assertion that the Veteran's use of Valium and inhaling Dust-Off was not willful misconduct, but was used to self-medicate physical and mental injuries incurred during the Veteran's deployment. Additionally, the Board recognizes that the Veteran's service treatment records for the time period of his deployment appear to be unavailable or have not been associated with the claims file. See 38 C.F.R. § 3.105(a)(1)(vi); Cook, 318 F.3d at 1341 (a breach of the duty to assist cannot constitute CUE). The evidence received in April 2018 was not before the adjudicator at the time of the August 2007 administrative decision. Insofar as such evidence pertains to the issue of whether the Veteran's use of drugs constitutes willful misconduct, even if this evidence did exist in the record at the time of the August 2007 adjudication, the Board finds the evidence and argument received in April 2018 also comes down to a matter of weighing and evaluating the facts. The appellant's attorney asserts that the August 2007 administrative decision incorrectly applied the statutory provisions extant at the time. In this regard, the Board notes that the laws and regulations pertinent to the issue of entitlement to service connection for cause of death on active service and entitlement to DIC were essentially the same as they are now. The appellant's attorney argues that the August 2007 decision improperly ignored presumptions of service connection created by 38 U.S.C. §§ 105(a) and 1154(b). As discussed above, for the purposes of entitlement to DIC, the standards and criteria for determining whether or not a death is service-connected shall be those applicable under 38 U.S.C. Chapter 11. See 38 U.S.C. § 1310; see Myore, 489 F.3d at 1212. Under 38 U.S.C. § 1110, pertaining to basic entitlement to "wartime disability" compensation, service connection will not be found where the disability is the result of the veteran's willful misconduct or abuse of alcohol or drugs. Here, the August 2007 administrative decision adopted the service department's finding that the preponderance of evidence demonstrated that the military vehicle rollover accident resulting in the Veteran's death would not have occurred if the Veteran's ability to drive had not been impaired due to his use of drugs. Applying this standard, the August 2007 administrative decision determined that the Veteran's cause of death on active service was due to willful misconduct and/or the abuse of drugs. Citing to 38 U.S.C. § 1154(b), the appellant's attorney argues that "clear and convincing evidence" is the proper evidentiary standard necessary to rebut a presumption that a "wartime disability" was incurred in line of duty and not the result of the veteran's own misconduct. Under 38 U.S.C. § 1154(b), service connection for an injury or disease incurred by a veteran engaged in combat with the enemy in active service may be rebutted by clear and convincing evidence to the contrary. In this case, although the Veteran's in-service death occurred in a combat area, the cause of the Veteran's death was determined to be nonhostile. See February 2007 DD Form 1300. The evidence of record does not otherwise indicate, and neither the appellant nor the appellant's attorney have suggested, that the cause of the appellant's death was the result of an actual fight or encounter with a military foe or hostile unit or instrumentality. See Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008) (interpreting the term "engaged in combat with the enemy" in 38 U.S.C. § 1154(b)). A showing of no more than service in a general "combat area" or "combat zone" is not sufficient to trigger the evidentiary benefit of 38 U.S.C. § 1154(b). Id. Based on the facts of this case that demonstrate the Veteran's death was not due to being engaged in combat with the enemy, the heightened standard in 38 U.S.C. § 1154(b) required to rebut a presumption of service connection for the Veteran's in-service death is not applicable. As such, the Board finds that the August 2007 administrative decision did not incorrectly apply the law in finding that the preponderance of the evidence was sufficient to establish that the Veteran's death was a result of willful misconduct and/or drug abuse, rebutting the presumption of service connection for the Veteran's death on active service. See 38 U.S.C. § 1110; see also Myore, 489 F.3d at 1212. The Board acknowledges that the appellant's attorney drew attention to the January 2019 Board decision's reasons and bases statement that "even assuming the Veteran ingested and was under the influence of Valium, there is no evidence whatsoever that his intoxication resulted proximately and immediately in his death." In consideration of this statement, the Board notes that the same January 2019 Board decision referenced the service department's finding that the Veteran's drug use caused his ability [to drive] to be severely impaired and resulted in the tragic accident, and that the January 2019 Board decision determined that the precise circumstances giving rise to the accident resulting in the Veteran's death remained ambiguous. Notably, the January 2019 Board decision afforded the appellant the benefit of the doubt in applying the law to the facts of this case and concluding that the Veteran's in-service death was not a result of willful misconduct. See 38 U.S.C. § 5107. As such, the Board does not find that the January 2019 Board decision supports the assertion that the August 2007 administrative decision contains CUE. In relation to the above favorable conclusion of law in the January 2019 Board decision, the appellant's attorney noted that favorable findings made by an adjudicator during the claims process are binding on all subsequent adjudicators within the VA system. See 38 C.F.R. §§ 3.104, 20.801 (2019). The binding nature of favorable findings on subsequent adjudicators does not have the effect of establishing clear and unmistakable error in a prior final decision. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988) (administrative rules will not be construed to have retroactive effect unless their language requires this result). A decision of a VA rating agency is binding as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104, and is not subject to revision except by the Board, by Federal court order, or as provided in 38 C.F.R. § 3.105 (pertaining to revision of decisions on the basis of CUE), 38 C.F.R. § 3.2500 (pertaining to appellate review of decisions under AMA), or 38 C.F.R. § 3.2600 (pertaining to appellate review of decisions unde the legacy system). 38 C.F.R. § 3.104 (2019). The Board has considered whether entitlement to an effective date prior to January 1, 2014 is warranted on any other basis. As noted above, following the August 2007 administrative decision, no other documents or correspondence were submitted by the appellant until the application to reopen the claim for entitlement to DIC was received in December 2013. See 38 C.F.R. § 3.400. Accordingly, the Board finds there is no other basis on which an effective date earlier than January 1, 2014 for the award of DIC can be granted. In sum, the Board does not find that the August 2007 administrative decision contains error of fact or law that is undebatable, or would manifestly have changed the outcome of the determination at the time it was made. Based on the facts as they existed at the time of the August 2007 administrative decision, the Board cannot conclude that the evidence of record compelled the conclusion, to which no reasonable minds could differ, that the Veteran's in-service death was not a result of willful misconduct. Given the law extant at the time and the evidence then of record, the Board finds it is not absolutely clear that a different result should have ensued. As such, the appellant's motion for CUE in the August 2007 administrative decision must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.