Citation Nr: 22017798 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-34 687 DATE: March 26, 2022 ORDER Entitlement to additional compensation for the Veteran's dependents, effective August 1, 1992, based on clear and unmistakable error (CUE) in a February 1993 decision by a Department of Veterans Affairs (VA) Regional Office (RO), is denied. FINDING OF FACT The February 1993 decision did not contain an error, of which reasonable minds could not differ, in not awarding the Veteran additional compensation for the Appellant, T., and N. as dependents. CONCLUSION OF LAW The criteria for entitlement to additional compensation for the Veteran's dependents, effective August 1, 1992, based on CUE in a February 1993 decision are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 3.151. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1966 to August 1968 and from December 1977 to July 1992, to include service in the Republic of Vietnam. The Veteran died in August 2017 and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 decision of a VA RO. Jurisdiction of the Veteran's claims file currently resides with the St. Louis, Missouri RO. In January 2022, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. CUE The Appellant has contended that a VA RO's February 1993 decision contained CUE in not awarding the Veteran additional compensation for dependents. See, e.g., December 2017 VA Form 21-4138, Statement in Support of Claim. Specifically, she has stated that VA had sufficient information at the time of the February 1993 decision to determine that the Veteran had a dependent spouse and two dependent children. See January 2022 Board Hearing Tr. at 4-6. Accordingly, in the Appellant's view, the February 1993 decision contained CUE in awarding compensation for the Veteran only at the rate provided for single veterans. Id. After reviewing the evidence of record, the Board respectfully disagrees with the Appellant's contentions. Accordingly, the Board denies the Appellant's claim. In support of this determination, the Board first notes that a decision by a VA RO that is final and binding is to be accepted as correct in the absence of a collateral attack demonstrating that the decision involved CUE. See 38 C.F.R. § 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). In this case, the February 1993 decision became final as the Veteran did not submit a notice of disagreement (NOD) or new and material evidence within one year of notification of the decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the February 1993 decision may only be altered via a collateral attack demonstrating that it contained CUE. 38 C.F.R. § 3.105(a)(1)(i) defines CUE as "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." It is a "very specific and rare kind of error[,]" and "[i]f it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." Id. (emphasis added). In determining whether CUE was committed, VA must evaluate the decision pursuant to the statutory and regulatory provisions that existed at the time the decision occurred. Id. Disagreements with how VA evaluated the facts before it and contentions regarding VA not fulfilling the duty to assist are not CUE. See Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As a preliminary matter, if a claimant wishes to raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). Allegations that a VA RO improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, broad-brush statements of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). In light of these principles, the Board finds that the Appellant has met the threshold pleading requirements with respect to her contention of CUE. Specifically, the Appellant has identified that a VA Form 21-686c, Declaration of Marital Status, was received by VA in June 1973 and, accordingly, information pertaining to the Veteran's marital status was available to VA at the time it issued the February 1993 decision. See December 2017 VA Form 21-4138, Statement in Support of Claim. If the information contained in the June 1973 VA Form 21-686c was sufficient for the RO to analyze the status of the Veteran's dependents in February 1993, then the result of the February 1993 decision could have been manifestly different. Accordingly, the Board will proceed to address the merits of the Appellant's CUE contention. In addressing the merits of the Veteran's CUE contention, the Board acknowledges the existence of the June 1973 VA Form 21-686c in the Veteran's claims file. On this form, the Veteran stated that he was currently married. He then stated that he married the Appellant in January 1972 in a town named New Windsor, though he did not identify the state where their marriage occurred. In addition, the Veteran did not provide the Appellant's social security number or indicate that he had any dependent children. The form itself informed the Veteran that a certified copy of the public or church record of his current marriage was required if either he or the Appellant had any prior marriages. The Veteran left a section on the form regarding previous marriages blank. At the time VA received the June 1973 VA Form 21-686c, the Veteran was not service-connected for any disabilities and was not receiving VA compensation benefits, and a claim for compensation was not pending at that time. Rather, in May 1973, he had submitted a VA Form 21E-1990, Veteran's Application for Program of Education or Training, to pursue a claim for education benefits. On this May 1973 form, the Veteran left a section concerning his marital status and dependent information blank. The Veteran had filed the above-mentioned June 1973 VA Form 21-686c after receiving correspondence from the New York, New York RO earlier in June 1973. This June 1973 correspondence from the RO indicated that the enclosed VA Form 21-686c was to be filed in connection with the Veteran's claim for education benefits. Moving beyond 1973, the Veteran filed his first claim for compensation in August 1992 when he submitted a VA Form 21-526. On this form, the Veteran requested that he be granted service connection for a disability of the spine, residuals of a back injury, right shoulder tendonitis, hemorrhoids, a broken nose, a bilateral ankle disability, hearing loss, and a heart condition. The form also included sections for the Veteran to provide dependency information. The Veteran responded by noting that he was currently married to the Appellant and that their marriage occurred in January 1972 in a proceeding officiated by a clergyman or authorized public official. The Veteran did not provide the Appellant's birthdate, but indicated that both he and the Appellant both did not have any other prior marriages. On top of page 2, the form notified the Veteran that he was required to provide a certified copy of the public or church record of his current marriage to establish that the Appellant was his dependent spouse. Additionally, the Veteran also indicated on this form that he currently had two dependent children: (1) T., born in March 1974, and (2) N., born in June 1975. He provided both children's social security numbers. The form notified the Veteran that a certified copy of the public or church record of birth, or a court record of adoption, was required to establish dependency. In January 1993, a VA RO issued a rating decision adjudicating the Veteran's August 1992 claim. In the rating decision, the RO awarded service connection for a right shoulder disability, a lumbar and thoracic spine disability, bilateral hearing loss, tinnitus, residuals of a fracture of the nose with deviation to the left, arteriosclerosis, and hemorrhoids. Pursuant to the January 1993 rating decision, the Veteran was granted compensation for service-connected disabilities and was assigned a combined disability rating of 40 percent, effective August 1, 1992. In February 1993, the RO issued the decision notification letter at issue in the instant case. In this letter, the RO informed the Veteran that his combined disability rating was 40 percent. On page 3 of the letter, it notified him that veterans with a combined disability rating of 30 percent or more could be paid an additional amount for dependents. The letter then explained that, to apply for this additional compensation for dependents, the Veteran was to provide a certified copy of his marriage certificate and certified copies of the birth certificates of his children showing the names of both parents. Additionally, the letter requested that he complete and return an enclosed school attendance form (VA Form 21-674) for his son T. Lastly, the letter stated that dependency documents had to be certified by the public custodian of the original document, and that photocopies or notarized copies were not acceptable. The Veteran did not provide dependency information to VA in response to the February 1993 letter. In addressing the Appellant's argument that sufficient information regarding the Veteran's dependency informationthe June 1973 VA Form 21-686c in particularwas associated with the claims file at the time VA issued the February 1993 decision letter, the Board acknowledges that, currently, 38 C.F.R. § 3.204(a)(1) permits that a statement of a claimant regarding the existence of a current marriage or birth of a child may be accepted as proof of dependency relationships, provided that the statement contains: (a) the date (month and year) and place of the event (marriage, birth, etc.); (b) the full name and relationship of the other person to the claimant; and (c) the social security number of any person on whose behalf the claimant is seeking benefits. However, at the time VA issued the February 1993 decision, 38 C.F.R. § 3.204(a)(1) as it is currently constituted did not exist. Rather, in 1993, 38 C.F.R. § 3.304(a) addressed the evidence necessary for the purpose of establishing marriage, age, or relationship. The regulation provided that the classes of evidence necessary to establish marriage or birth were indicated in 38 C.F.R. § 3.205 and § 3.209 in an order of preference. 38 C.F.R. § 3.304(a) (1993). The regulation explained that failure to furnish the higher class did not "preclude the acceptance of a lower class if the evidence furnished [was] sufficient to prove the point involved." Id. Lastly, 38 C.F.R. § 3.304(b) and (c) described limited circumstances where VA would accept (1) documents not certified over the signature and official seal of the person having custody of the record, or (2) photocopies of the original documents. But, the circumstances addressed by sections (b) and (c) are not applicable in the instant case. At the time VA issued the February 1993 decision, 38 C.F.R. § 3.205 set forth what evidence was necessary to prove the existence of a marriage for VA compensation purposes. 38 C.F.R. § 3.205(a) (1993) provided that proof of marriage could be established by one of the following types of evidence: (1) Copy of the public record of marriage, certified or attested, or by an abstract of the public record, containing sufficient data to identify the parties, the date and place of the marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or one authorized to act for such officer bearing the seal of such office, or otherwise properly identified, or a certified copy of the church record of marriage. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage accompanied by proof of its genuineness and the authority of the person to perform the marriage. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. In this case, none of the types of evidence identified in 38 C.F.R. § 3.205(a)(1) (7) (1993) were associated with the claims file at the time VA issued the February 1993 decision. While 38 C.F.R. § 3.305(1)(7) (1993) did provide an avenue for establishing proof of marriage based upon the receipt of "[a]ny other secondary evidence[,]" such secondary evidence had to reasonably support a belief by the adjudicator that a valid marriage actually occurred. As recounted previously, at the time of the February 1993 decision, the Veteran had provided inconsistent or incomplete statements concerning the details of his marriage to the Appellant, as well as information concerning the Appellant herself. Specifically, the Veteran first indicated in 1973 that he was single, only to later change his marital status. Additionally, at the time of the February 1993 decision, the record did not contain consistent reports regarding the state where the Veteran's marriage to the Appellant occurred, the Appellant's date of birth, or the Appellant's social security number. Though sympathetic to the Appellant's contention, the Board concludes that reasonable minds could differ regarding the applicability of 38 C.F.R. § 3.305(1)(7) at the time the February 1993 decision was issued. As reasonable minds could differ, the Board may not find that the February 1993 decision contained CUE in not recognizing the Appellant as the Veteran's dependent spouse based upon the evidence of record in the claims file at that time, including the June 1973 VA Form 21-686c, May 1973 VA Form 21E-1990, and August 1992 VA Form 21-526. Turning toward the Appellant's contention of CUE concerning the Veteran's children T. and N., at the time of the February 1993 decision, 38 C.F.R. § 3.209 provided for what specific types of evidence were necessary to establish the relationship between a claimant and his or her children as well as the age of a specific child in question. Specifically, under 38 C.F.R. § 3.209 (1993), a claimant was to provide the following types of evidence for proof of age and relationship: (a) A copy or abstract of the public record of birth, certified by the custodian of such records. Such a record established more than 4 years after the birth will be accepted as proof of age or relationship if, it is not inconsistent with material of record with [VA], or if it shows on its face that it is based upon evidence which would be acceptable under this section. (b) A copy of the church record of baptism, certified by the custodian of such records. Such a record of baptism performed more than 4 years after birth will not be accepted as proof of age or relationship unless it is consistent with material of record with [VA], which will include at least one reference to age or relationship made at a time when such reference was not essential to establishing entitlement to the benefit claimed. (c) Official report from the service department as to birth which occurred while the veteran was in service. (d) Affidavit or a certified statement of the physician or midwife in attendance at birth. (e) Copy of Bible or other family record certified to by a notary public or other officer with authority to administer oaths, who should state in what year the Bible or other book in which the record appears was printed, whether the record bears any erasures or other marks of alteration, and whether from the appearance of the writing he or she believes the entries to have been made at the time purported. (f) Affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their own knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge. (g) Other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, school, employment, immigration, or naturalization records. Similar to the above circumstances concerning proof of marriage, at the time of the February 1993 decision, none of the types of evidence identified in 38 C.F.R. § 3.209 (1993) were associated with the claims file at the time VA issued the February 1993 decision. While 38 C.F.R. § 3.209(g) (1993) did allow proof of birth and relationship to be established by "[o]ther evidence," the Board finds that reasonable minds could differ as to whether "adequate" evidence was associated with the Veteran's claims file at the time VA issued the February 1993 such that the decision did not contain CUE in not including additional compensation for the Veteran's children T. and N. For example, the Veteran's August 1992 VA Form 21-526 did not include his children's full names or the location of their births. Reasonable minds could thus disagree as to whether a claimant's own statement that omitted such information was "adequate" to sufficiently prove both age and relationship as contemplated by 38 C.F.R. § 3.209(g) in 1993. If reasonable minds could disagree, the Board may not conclude that not including T. and N. as dependents constituted CUE by the February 1993 RO. In reaching this determination regarding the lack of additional compensation for dependents on the Veteran's February 1993 decision, the Board notes that in McColley v. West, 13 Vet. App. 553 (2000), the Court of Appeals for Veterans Claims (Court) addressed circumstances where a claimant did not comply with VA requirements to furnish specific proof as requested on VA forms in connection with establishing dependency relationships. The Court first stated that, pursuant to 38 U.S.C. § 501, the Secretary of VA had authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. Id. at 556. The Court then explained that the form the appellant submitted in that case, received in November 1992, stated that "both a marriage certificate evidencing a claimant's current marriage, and a certified copy of the public or church record of birth," were required to establish dependency relationships for compensation purposes. Id. (internal quotation marks omitted). The Court then noted that copies of the appellant's marriage certificate were timely received by VA in 1993, but the appellant did not provide his children's birth certificates until 1996. Id. The Court concluded that, due to the absence of any evidence that the appellant's children's birth certificates were received by VA prior to 1996, the denial of an effective date prior to 1996 for the additional of his children as dependents was not erroneous. Id. Similar to the appellant in McColley, the Veteran's August 1992 VA 21-526 claim form notified the Veteran and specified that he provide (1) certified copies of the public or church record of his current marriage, and (2) certified copies of the public or church records of his children's births. The record indicates that the Veteran did not provideand the claims file did not includesuch documents prior to the RO issuing its decision in February 1993. Accordingly, the Board concludes that it was not clearly and unmistakably erroneous for the RO to not recognize any dependents for compensation purposes at the time it issued the February 1993 decision. The Board acknowledges the Appellant's January 2022 hearing testimony regarding VA obtaining her marriage certificate vis-à-vis her providing it to United States Army personnel at Fort Leonard Wood, Missouri in the past in connection with obtaining an identification card. See January 2022 Board Hearing Tr. at 4-6. In reviewing the claims file, the Board notes that the Veteran's service personnel records (SPRs) included applications dated in October 1991 and December 1991 concerning his attempts to obtain DEERS identification cards for T., N., and the Appellant. These applications included notations that "legal document[s]" were provided with requests to obtain identification cards. However, the Board notes that a report to DEERS does not constitute providing sufficient proof to VA regarding changes in dependent status as DEERS is a system of the Department of Defense and is not a part of, or administered by, VA. Further, while the applications did indicate that related "legal documents" were submitted in conjunction with the applications, the documents themselves were not in the Veteran's SPRs such that the Board may conclude that sufficient proof as required by 38 C.F.R. § 3.205 and § 3.209 was included in the Veteran's VA claims file in February 1993. Accordingly, not granting additional compensation for dependents in February 1993 based on the Veteran's reports of dependency changes to DEERs or other Department of Defense officials in 1991 did not constitute CUE. Lastly, the Board acknowledges the Appellant's argument that, as VA had incomplete information concerning his dependents in 1993, VA should have assisted the Veteran in obtaining any additional necessary evidence concerning dependency prior to issuing the decision at issue in February 1993. See July 2018 VA Form 9. Relatedly, the Appellant has also stated that VA's attempt to assist the Veteran in February 1993 was insufficient as information concerning how to substantiate dependency relationships for VA compensation purposes was included on the last page of the February 1993 decision notification letter. Id.; see also January 2022 Board Hearing Tr. at 4. In essence, the Appellant is contending that the February 1993 decision should be revised due to a duty to assist error. In addressing this argument, the Board notes that the February 1993 decision letter did include information telling the Veteran that he could receive additional compensation for benefits. Further, the letter provided him an explanation regarding how to obtain this additional compensation. Although the Appellant may disagree with where this information was included in the February 1993 letter, she has not specified how the placement of this information in the letter was inconsistent with VA's duty to notify as provided by 38 U.S.C. § 5103 (1993). Further, as referenced previously, 38 C.F.R. § 3.105 defines CUE for the purpose of revising prior final rating decisions by VA ROs based on CUE. 38 C.F.R. § 3.105(a)(vi) references 38 C.F.R. § 20.1403(d) for examples of situations that do not constitute CUE. 38 C.F.R. § 20.1403(d) defines CUE in the context of modifying prior final Board decisions. In such circumstances, 38 C.F.R. § 20.1403(d)(2) explicitly indicates that VA's failure to fulfill its duty to assist may not constitute CUE as a matter of law. Accordingly, even if VA did not fulfill its duty to assist prior to issuing the February 1993 decision, such a failure is definitionally not CUE and may not serve as a basis for revision of the February 1993 decision to include additional amounts of compensation for the Appellant, T., and N. as the Veteran's dependents. (Continued on the next page) In sum, the Board finds that the February 1993 decision did not commit an error, of which reasonable minds could not differ, in regard to its conclusion to award compensation for the Veteran at the rate provided for single veterans. As such, the Board denies the Appellant's claim for revision of the February 1993 decision on the basis of CUE. 38 C.F.R. § 3.105. (Signature on Next Page) Cory M. Picton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.