Citation Nr: 21013147 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-17 726 DATE: March 8, 2021 ORDER Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is granted. FINDING OF FACT The Veteran would have been rated totally disabled for a continuous period of at least ten years immediately preceding his death on April [REDACTED], 2016, but for clear and unmistakable error (CUE) in an October 2006 rating decision that awarded a total disability rating based on individual unemployability (TDIU) as of June 23, 2006, rather than July 1, 2005. CONCLUSION OF LAW The criteria for DIC under the provisions of 38 U.S.C. § 1318 have been met. 38 U.S.C. §§ 1155, 1318, 5109A; 38 C.F.R. §§ 3.22, 3.105, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1954 to November 1956. He died in April 2016 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the appellant and her daughter-in-law testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to DIC under the provisions of 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the veteran’s death was not the result of his or her own willful misconduct and, at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated by VA as totally disabling continuously since the veteran’s release from active duty and for a period of at least five years immediately preceding death; or, (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). For the purposes of this provision, the total disability rating may be based on schedular considerations or on unemployability (TDIU). 38 C.F.R. § 3.22(c). In essence, the only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the above-described statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for CUE in a previous decision; or (3) to show that service department records were in existence at the time of a prior VA decision but were not considered by VA, and that such records provide a basis for reopening a claim finally decided during the veteran’s lifetime and for awarding a total service-connected disability rating retroactively. In the instant case, the record reflects that, at the time of the Veteran’s death on April [REDACTED], 2016, he was in receipt of a 50 percent rating for bilateral hearing from March 1, 2004, to June 23, 2006, and 80 percent thereafter, and a 10 percent rating for tinnitus as of March 1, 2004, which resulted in a combined disability rating of 60 percent as of March 1, 2004, and 80 percent as of June 23, 2006. However, he was in receipt of a TDIU as of June 23, 2006, and died on April [REDACTED], 2016, which is approximately 2 months shy of meeting the 10-year requirement of being in receipt of a total disability rating in order to award DIC under 38 U.S.C. § 1318. The Veteran was also not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death, and is not a former prisoner of war. 38 C.F.R. § 3.22(a). Additionally, the appellant does not contend, and the evidence does not show, that service department records were in existence at the time of a prior VA decision but were not considered by VA and such records provide a basis for reopening a claim finally decided during the Veteran’s lifetime and awarding a total service-connected disability rating retroactively. Thus, the only way for the appellant to prevail on a claim for benefits under 38 U.S.C. § 1318 is to show that the Veteran would have met the statutory duration requirements for a total disability rating at the time of death but for CUE in a previous decision. In this regard, the appellant contends that, but for CUE in failing to consider and award a TDIU in a June 2004 rating decision and assigning an effective date of June 23, 2006, for the award of a TDIU in a October 2006 rating decision, the Veteran would have been in receipt of a total disability rating for at least 10 years prior to his death, thereby entitling her to DIC under 38 U.S.C. § 1318. In this regard, the Board finds that both the June 2004 and October 2006 rating decisions are final as the Veteran did not enter a notice of disagreement within one year of their issuance, no new and material evidence was physically or constructively associated with the record within one year of their issuance, and, as indicated previously, no relevant service department records have since been received. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2003), (2006). The Board notes that, in general, previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). 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 results would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The United States Court of Appeals for Veterans Claims (Court) set forth a three-pronged test for determining when there is CUE present in a prior decision. These are (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 the 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. Russell v. Principi, 3 Vet. App. at 313-14 ; See also Bustos v. West, 179 F. 3d 1378, 1380-81 (Fed. Cir. 1999) (to prove CUE, a claimant must show that an error was outcome-determinative, an error that would manifestly have changed the outcome of the prior decision). At the time of the June 2004 and October 2006 rating decisions, VA regulations provided that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident, or affecting a single body system, are considered one disability for the purpose of meeting the threshold criteria for a TDIU. Id. Additionally, the law pertaining to the effective date of a VA claim for increase in disability mandated that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). In this case, the June 2004 rating decision granted service connection for bilateral hearing loss and tinnitus, which resulted in a combined rating of 60 percent, effective March 1, 2004, the date VA received the Veteran’s original claim for service connection. At the time of the decision, he met the schedular criteria for a TDIU; however, such claim was not raised by the Veteran nor the evidence of record. In this regard, the evidence of record at such time, which included the Veteran’s service treatment records, VA and private treatment records, and a May 2004 VA examination report, did not demonstrate that his service-connected bilateral hearing loss and/or tinnitus rendered him secure or follow a substantially gainful occupation. In fact, while received subsequent to such decision, the Veteran’s July 2006 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), reflects that he worked until June 30, 2005. Thus, the June 2004 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. Consequently, there is no CUE in the June 2004 rating decision to the extent that such did not consider and award a TDIU. The October 2006 rating decision awarded an increased rating of 80 percent for the Veteran’s bilateral hearing loss and TDIU as of June 23, 2006, the date of his receipt of his informal claim for such benefits. The evidence of record at such time, which included the Veteran’s TDIU application, VA treatment records, and August 2006 VA examination report, reflected that his bilateral hearing loss had increased in severity so as to warrant an 80 percent rating and the award of a TDIU. In this regard, the rating decision acknowledged that the Veteran last worked full-time in June 2005 (specifically June 30, 2005) as a custodian, but awarded an effective date of June 23, 2006, the date of receipt of his most recent claim, for a TDIU as his application for such benefit was not received within one year of the issuance of the May 2004 rating decision. However, the Board finds that statutory or regulatory provisions extant at the time of the October 2006 rating decision were incorrectly applied in regard to the assignment of the effective date of June 23, 2006, for the award of a TDIU. As noted previously, such provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). In the instant case, the evidence of record at the time of the October 2006 rating decision, to include the Veteran’s July 2006 VA Form 21-8940, reflected that he last worked full-time on June 30, 2005, at which time his service-connected disabilities of bilateral hearing loss and tinnitus, which met the schedular requirements for a TDIU, rendered him unable to secure or maintain a substantially gainful occupation. Thus, as the evidence of record at the time of the October 2006 rating decision demonstrated that there had been a factually ascertainable increase in the Veteran’s service-connected disabilities so as to render him unemployable in the one-year period prior to the date of receipt of his TDIU claim on June 23, 2006, it was CUE to award a TDIU as of June 23, 2006, rather than July 1, 2005, the day after he last worked full-time. 38 C.F.R. §§ 3.400(o), 4.16. Therefore, the Board finds that the Veteran would have been rated totally disabled for a continuous period of at least ten years immediately preceding his death on April [REDACTED], 2016, but for CUE in an October 2006 rating decision that awarded a TDIU as of June 23, 2006, rather than July 1, 2005. Consequently, the Veteran meets the durational requirements for DIC under 38 U.S.C. § 1318 and, as such, the appellant’s claim for such benefit is granted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.