Citation Nr: A21019685 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 200506-85476 DATE: December 10, 2021 ORDER Severance of the appellant's entitlement to Dependency and Indemnity Compensation (DIC) benefits, effective September 1, 2019, was proper. FINDINGS OF FACT 1. The evidence clearly and unmistakably establishes that the June 2018 decision to grant DIC benefits was improper. 2. At the time of his death, the appellant's husband was not in receipt of service-connected disability compensation or serving on active duty, active duty for training, or inactive duty for training. CONCLUSION OF LAW The April 2020 severance of the appellant's entitlement to DIC benefits, effective September 1, 2019, was proper. 38 U.S.C. §§ 101, 1110, 1310, 5109A, 5112; 38 C.F.R. §§ 3.1, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's husband served on active duty in the United States Army from January 1959 to July 1959, with additional service in the Army National Guard. He died in January 1969. The appellant filed a claim for DIC benefits in March 2018. A Department of Veterans Affairs (VA) Regional Office (RO) granted her claim in a June 2018 notification letter, which stated that she was entitled to DIC benefits from March 1, 2018. In December 2018, the appellant filed a notice of disagreement requesting an earlier effective date for DIC benefits. In June 2019, however, the RO notified the appellant that it was proposing to terminate DIC benefits. As rationale, the RO explained that the June 2018 notification letter erroneously awarded DIC benefits because the evidence available to the RO at that time showed that her husband was not on active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA) at the time of his death. The RO indicated that she could send additional information within 60 days and submit a request for a pre-decisional hearing within 30 days. The appellant attended a pre-decisional hearing in March 2020. In an April 2020 letter, the RO notified the appellant that DIC benefits had been terminated from September 1, 2019. Because the decision to terminate DIC benefits was issued in April 2020, the Appeals Modernization Act (AMA) applies. In her May 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Hearing docket. A hearing was held with the undersigned in August 2021; a transcript of her testimony has been associated with the claims file. To that end, the Board may only consider the evidence of record at the time of the RO decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Severance As set forth above, the appellant's husband served on active duty from January 1959 to July 1959. Thereafter, he served in the Army National Guard, with intermittent periods of ACDUTRA or INACDUTRA. In January 1969, he visited Key West, Florida, to go fishing with his friend, the Army Adjutant General of the State of Wisconsin. Tragically, he was killed in an airplane crash while returning home to Wisconsin. At the time of the crash, he was traveling in a military aircraft while wearing his military uniform. Significantly, however, his service department records indicate that he was traveling on the aircraft as a non-paying passenger on a "space available" basis, as opposed to flying on a National Guard mission or while on active duty. He was not service connected for any disabilities at the time of his death. Following her husband's death, the appellant sued the United States and the Wisconsin National Guard under the Federal Tort Claims Act (FTCA). In 1971, a federal district court issued a summary judgment in favor of the United States and dismissed her claim against the Wisconsin National Guard. In so finding, the district court explained that even if a soldier is on leave or off duty but injured while taking advantage of military privileges not generally permitted to civilians, or if the soldier is injured while under military jurisdiction, then he is barred from suing the government. The district court explained that because the appellant's husband was fatally injured while taking advantage of special travel privileges granted military personnel, he was indisputably "under military jurisdiction." Subsequently, the appellant appealed this decision to the Seventh Circuit Court of Appeals. In 1973, the Seventh Circuit upheld the district court's decision, explaining that the appellant's husband's death was "incident to his service" and that the appellant's claims were not cognizable under the FTCA. As rationale, the Seventh Circuit stated that the aircraft in which he was killed was on a duly authorized flight for the purposes of providing navigational training for Wisconsin Air National Guard personnel who were also on the aircraft and for transporting the Adjutant General from Key West to Wisconsin. Although he was not on active duty, INACDUTRA, or ACDUTRA at the time, the Seventh Circuit found that the appellant's husband was subject to military courtesies and discipline while on board the military flight. As such, the Seventh Circuit held that he was "in the line of duty" and "under command," while he was killed, and that the district court had properly rendered a judgment for the government pursuant to Feres v. United States, 340 U.S. 135, 146 (1950) (holding that the government is not liable under the FTCA for injuries to servicemen where injuries arise out of or are in the course of activity incident to service). Several years later, the appellant submitted VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits. She contended that her husband's death was a result of his military service because he was on a military aircraft that crashed. VA granted in-service DIC benefits from February 18, 2018, in a June 2018 decision. In June 2019, however, the RO rendered an administrative decision that determined that it was clearly and unmistakably erroneous to grant DIC benefits because his death was not considered "in service." DIC benefits were formally severed in an April 2020 rating decision. This appeal followed. Service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R.§ 3.105(d). Clear and unmistakable error 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 reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In the context of severance of service connection, revision of a prior decision based on clear and unmistakable error is warranted when there was an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome. Stated differently, severance is warranted when, based on the current evidence of record, a grant of service connection would have been clearly and unmistakably erroneous. Graves v. Brown, 6 Vet. App. 166, 170 (1994). Before determining whether severance was proper, the Board must first determine whether the RO followed the due process requirements contained in 38 C.F.R. § 3.105(d) with respect to severing DIC benefits. 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. Generally, 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). Here, the RO satisfied all procedural requirements regarding severance. To that end, the RO initially granted service connection in a June 2018 decision. In June 2019, however, the RO proposed to sever service connection and explained that the decision to grant service connection had been clearly and unmistakably erroneous because the appellant's husband had not been serving on active duty, ACDUTRA, or INACDUTRA at the time of his death. The appellant was notified at her latest address of record, furnished with detailed reasons for the proposed decision, and given 60 days to present additional evidence. She was afforded the opportunity to testify at a pre-determination hearing in March 2020 before the RO determined that severance was warranted in April 2020. As such, the RO followed the proper steps for severing service connection, and no due process deficiencies are present. The chief question for the Board is thus whether the RO's decision to sever DIC benefits was appropriate. In other words, the Board must determine whether the decision to grant the benefits would have been clearly and unmistakably erroneous. The appellant argues that severance of DIC benefits was not warranted because her husband died in military service due to a military plane crash. Essentially, she argues that because the Seventh Circuit found that her husband died incident to his service, VA is precluded from finding that he was not on duty at the time of his death. For this reason, she argues, it was appropriate to award DIC benefits, and severance of DIC benefits was improper. The Board has considered the pertinent legal authorities regarding death in the line of duty. In general, when a veteran dies after December 31, 1956, while in active military, air, or naval service, from a service-connected or compensable cause, VA shall pay DIC to certain of the veteran's survivors, including the veteran's surviving spouse. See 38 U.S.C. § 1310. For DIC purposes, the meaning of the term "veteran" includes a person who died in active military, naval, or air service and whose death was not due to willful misconduct. 38 C.F.R. § 3.1(d)(1). A veteran's death is service-connected if it occurred in the line of duty in active military, naval, or air service. See 38 C.F.R. § 3.1(k). A death in the line of duty means a death during active military, naval, or air service, unless the death was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(m). For VA purposes, the term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which an individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). The term "active duty" broadly means full-time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C. § 21(A). The term "ACDUTRA" includes full-time duty in the Armed Forces performed by Reserves for training purposes, or for members of the Army National Guard of any State, full-time duty under section 316, 502, 503, 504, or 505 of title 32. 38 U.S.C. § 22(A), (C). Additionally, the term "INACDUTRA" includes duty (other than full-time duty) prescribed for Reserves or, in the case of a member of the Army National Guard of any State, duty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32. 38 U.S.C. § 101(23). The Board has also carefully considered all relevant evidence in the record. This evidence includes the text of the Seventh Circuit decision, explained in greater detail above, as well as a DD 1300, Report of Casualty, which was prepared in February 1969. The DD 1300 states that the appellant's husband was not in a duty status at the time of his death in January 1969. Additionally, the record contains other military personnel records, including a June 1969 letter from the then-Adjutant General to the Staff Judge Advocate at Chanute Air Force Base. This letter was written in response to a request for information on the status of the appellant's husband. In that letter, the then-Adjutant General clarified that the appellant's husband was not on a National Guard mission at the time of his death, but rather was traveling on a space available basis on the flight. He also stated that he was not on active duty. Based on the foregoing, the Board finds that the RO's decision to sever DIC benefits was proper. To that end, the record indicates that although the appellant's husband was on a military aircraft when he died, he was not serving on active duty, ACDUTRA, or INACDUTRA at the time. Instead, he was on the flight because he was returning home from a purely social fishing trip in Key West with the Adjutant General and because space was available for additional passengers on the flight. Because he did not die while on active military, naval, or air service, DIC benefits are not available under 38 U.S.C. § 1310 or 38 C.F.R. § 3.1. In reaching this decision, the Board has considered the appellant's argument that VA is precluded from finding that the Veteran was not in the line of duty at the time of his death based on the Seventh Circuit's 1973 decision. Claim preclusion and issue preclusions are related doctrines used to protect the finality of decisions and prevent proliferation of litigation. Both doctrines are based on the same principle: after a claim or issue is properly litigated, that is the end of the matter for parties to that action. Claim preclusion prevents relitigating claims previously tried and decided. Four factors are considered when considering whether a successive lawsuit involves the same cause of action: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by the prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two actions involve infringement of the same right; and (4) whether the two actions arise out of the same nucleus of facts. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). Issue preclusion, on the other hand, bars relitigating issues that were actually adjudicated in previous litigation between the same parties. Parties invoking issue preclusion must show (1) the issue at stake is identical to the issue raised in prior litigation; (2) the issue was actually litigated in prior litigation; and (3) the determination of the issue in prior litigation must have been a critical and necessary part of the judgment in the earlier action. Id. However, the Seventh Circuit's 1973 decision regarding the application of the FTCA has no preclusive effect on VA in the current matter, which concerns the veterans' benefits system. In this respect, federal courts have ruled that claim preclusion is "incompatible with the statutory purposes underlying the veterans' disability and FTCA statutory schemes." Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir. 2003). Indeed, the systems established by Congress allow veterans' benefit determinations and federal tort claims to take place in separate judicial fora because of the separate purposes of the two statutory schemes. On one hand, the veterans' benefit program ensures that veterans are treated fairly by the same government that asks so much of them, while on the other hand, the FTCA is a means of making claimants whole. Moreover, issue preclusion has been rejected by courts that have addressed the relation of prior VA disability benefit determinations to FTCA claims. See, e.g., Sweet v. United States, 687 F.2d 246, 248-49 (8th Cir. 1982). In any event, VA is not precluded from deciding the appellant's husband did not die while on active service, because the same claim or issue was not litigated in the appellant's FTCA case. To that end, questions of preclusion come into play when an action involves infringement of the same right or the same issue is at stake that was raised and fully litigated in prior litigation. Here, however, this is not the case. In 1973, the 7th Circuit held that the appellant's husband was "in the line of duty" when he died to the extent that his death was "incident to his service" under 28 U.S.C. § 2674 and that relief was unavailable under the FTCA. Significantly, the 7th Circuit did not decide whether he was killed during active military, air, or naval service, consistent with the definitions in 38 U.S.C. § 101, for purposes of determining whether DIC benefits were warranted. Although at first blush the claims and issues on appeal appear to be closely related to those in the prior litigation, the 7th Circuit did not find that the appellant's husband was on active duty, ACDUTRA, or INACDUTRA when he died. (In fact, the 7th Circuit's decision explicitly states that he was not on ACDUTRA or INACDUTRA.) Accordingly, the legal questions underlying the instant matter are not the same legal questions underlying the prior FTCA litigation. Setting aside the arguments regarding issue or claim preclusion, the Board reiterates that the relevant service department records affirmatively state that the appellant's husband was not in duty status at the time of his death in January 1969. To that end, decisions certifying service are the prerogative of a service department. Relevantly, a service department finding that an injury, disease, or death occurred in the line of duty is binding on VA unless patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). On the other hand, when official service department records do not establish that a claimant was in active military, naval, or air service, VA is prohibited from finding that the particular individual served in the armed forces. Cahall v. Brown, 7 Vet. App. 232 (1994) (only official service department records can establish if and when an individual was serving on active duty, ACDUTRA, or INACDUTRA). Moreover, when the evidence in the record includes service department findings, it is an error for the Board to make its own findings of fact on the line of duty without addressing the service department records before doing so. This is because the regulations recognize "that the Service Department" is in the best position to assess . . . line of duty actions of its Service." Crediford v. Shulkin, 877 F.3d 1040, 1046-47 (Fed. Cir. 2017). All this is to say that, regardless of what the 7th Circuit determined in the prior FTCA case, VA cannot simply find that the appellant's husband was killed during active military service where service records expressly state that this was not the case. If the appellant disagrees with the information contained in her husband's official service department records, she is free to contact the Army Board for the Correction of Military Records. See Cahall, 7 Vet. App. at 237. Based on the foregoing, there was clear and unmistakable evidence that the appellant's husband was not serving on active duty, ACDUTRA, or INACDUTRA at the time of his death. Accordingly, there was no legal basis for entitlement to service connection for his death in the line of duty, and severance of DIC benefits was proper. The Board truly sympathizes with the appellant for her loss and understands her frustration regarding the legal "catch-22" she finds herself in. Moreover, the Board acknowledges the seemingly contradictory nature of the Seventh Circuit and VA's findings regarding the nature of her husband's death. Nonetheless, the Board is bound by the relevant legal authorities and is unable to grant her claim on an equitable basis. This is a claim in which the law, rather than facts, is dispositive; as such, it must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). K. Banfield 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.