BVA9502348 DOCKET NO. 93-08 821 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Whether the February 24, 1994, rating decision of the agency of original jurisdiction was the product of clear and unmistakable error so that the veteran could have received a total disability rating for at least ten consecutive years prior to his death, thus entitling the appellant to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1318 (West 1991). 2. Whether new and material evidence has been submitted to reopen a claim for service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from November 1948 to August 1952. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Buffalo, New York. At the time of the veteran's death, he was receiving service- connected benefits for the residuals of a gunshot wound to the skull, chronic brain syndrome, homonymous hemianopsia,and osteomyelitis. He was also in receipt of a total disability rating based on individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The widow contends that as a result of her husband's service- connected disabilities, he was unable to obtain and maintain gainful employment. She avers that when the RO determined, in February 1974, that the veteran was entitled to a total disability rating based on his unemployability, the effective date of the award should have been in May 1973 instead of November 1973. Moreover, she contends that but for this error, she would be receiving dependency and indemnity compensation benefits under 38 U.S.C.A. § 1318 (West 1991). Thus, the appellant requests that the effective date of the original award be changed and that she receive retroactive payment of service- connected death benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence demonstrates that the February 24, 1974, rating action did not contain clear and unmistakable error. Also, it is the decision of the Board that sufficient new and material evidence has not been proffered to reopen the appellant's claim for entitlement to service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The veteran received service-connected benefits for the residuals of a gunshot wound (GSW) to the skull, rated as 50 percent disabling; chronic brain syndrome with retained metallic fragment in the cerebellum, rated as 30 percent disabling; a right homonymous hemianopsia, rated as 30 percent disabling; recurrent osteomyelitis, rated as 20 percent disabling; and a noncompensable rating for a scar of the shoulder resulting from a gunshot wound. The combined schedular disability evaluation was 80 percent. 3. On November 13, 1973, the RO received, via the service representative, a claim for an increased rating for the veteran's disabilties, to include a total disability rating based on individual unemployability. 4. Following review of the evidence and a physical examination, the RO in 1974 determined that the veteran was entitled to a total (100 percent) rating, and assigned November 13, 1973, as the effective date. 5. The veteran died in September 1983, and the appellant applied for VA compensation and pension benefits. The RO, and subsequently the Board, determined that the veteran's service- connected disabilities were not etiologically related to his death. 6. Evidence submitted since 1984 does not show a possible etiological relationship between the veteran's cause of death and his service-connected disabilities. CONCLUSIONS OF LAW 1. The February 24, 1974, rating decision which granted a total rating based on the veteran's unemployability, and established an effective date of November 13, 1973, did not contain clear and unmistakable error, and a reversal is not warranted. 38 C.F.R. § 3.400 (1973). 2. Evidence received since the 1984 Board Decision which denied entitlement to service connection for the cause of the veteran's death is not new and material, and the appellant's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the appellant in the development of her claim has been satisfied. Id. I. Clear and Unmistakable Error The veteran had active duty service from November 1948 to August 1952. Two years prior to his release from active duty, he was severely wounded on the Korean Peninsula. Said injury consisted of a penetrating wound to the occipital lobe of the brain. Within three years of his release from active duty, the veteran applied for, and received, VA compensation benefits. VA Form VB 8-564, Rating Sheet, June 10, 1955. His service-connected disabilities and evaluations were as follows: residuals of a gunshot wound (GSW) to the skull, rated as 50 percent disabling; chronic brain syndrome with retained metallic fragment in the cerebellum, rated as 30 percent disabling; a right homonymous hemianopsia, rated as 30 percent disabling; recurrent osteomyelitis, rated as 20 percent disabling; and a noncompensable rating for a scar of the shoulder resulting from a gunshot wound. The combined schedular evaluation was 80 percent disabling. For the next eighteen years the veteran attempted to cope with his disabilities. Although he had numerous visits to the hospital for his conditions, he raised a family and worked in rural New York. Then, in 1973, the veteran's wife forwarded an informal claim to the AMVETS representative requesting that her husband's service-connected disabilities be re-evaluated for a possible increased rating. Letter from appellant, August 4, 1973. The appellant also stated that her husband could no longer work. On November 12, 1973, a Mr. A. Bartel, AMVETS National Service Officer, forwarded the appellant's request to the RO for adjudication. VA Form 21-4138, Statement in Support of Claim, November 12, 1973. The RO received the representative's statement on November 13, 1973. On the basis of the appellant's letter, the RO scheduled the veteran for an examination and also requested that he complete VA Form 21-527, Income-Net Worth and Employment Statement. As a result of that physical examination, the RO, on February 24, 1974, found that the veteran was individually unemployable due to his service-connected disabilities. VA Form 21-6796, February 24, 1974. The effective date assigned was November 13, 1973 - the day the RO received the VA Form 21-4138 from the veteran's service officer. On September 3, 1983, the veteran died of acute congestive heart failure due to or as a consequence of coronary insufficiency and severe occlusive coronary arthrosclerosis. Certificate of Death, September 4, 1983. Following the veteran's demise, the appellant filed a request for dependency and indemnity compensation (DIC). VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by Surviving Spouse or Child (Including Accrued Benefits and Death Compensation, Where Applicable), September 8, 1983. The RO denied the appellant's request for DIC benefits holding that the veteran had not died from his service-connected disabilities. Moreover, the RO opined that the veteran's service-connected disabilities did not contribute to or substantially hasten his death. VA Form 21-6796, Rating Decision, September 30, 1983. Thus, the widow was not entitled to DIC benefits. Upon receiving notification of that decision, the appellant appealed to the Board of Veteran's Appeals. In a decision, dated December 28, 1984, the Board ruled that the objective evidence of record did support the appellant's claim. Board Decision, December 28, 1984. The Board further determined that under 38 U.S.C.A. § 410 (now 38 U.S.C.A. § 1310), and 38 C.F.R. § 3.312 (1984), the veteran's death was not due to or a result of or hastened by his service-connected disabilities. In July 1992, the appellant notified the RO that she wished to reopen her claim for DIC benefits. VA Form 21-4138, Statement in Support of Claim, July 14, 1992. She maintained that her husband had been unable to work for over ten years, and that under 38 U.S.C.A. § 1318 (West 1991) she was entitled to DIC benefits. 38 U.S.C.A. § 1318 (West 1991) states that the surviving spouse of a deceased veteran may be paid benefits in the same manner as if the veteran's death were service-connected providing that the veteran was in receipt of or entitled to receive compensation at the time of death for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death. 38 C.F.R. § 3.22 (1994) liberalizes the statute by including "totally disabling by a schedular or unemployability rating." (Emphasis provided.) After receiving the appellant's claim, the RO informed her that she had not introduced any new and material evidence, i.e., it was duplicative of information already in the claims file, and therefore, her claimed was denied. Letter to the appellant, August 31, 1992. She appealed that rating via a VA Form 21-4138, Statement in Support of Claim, signed September 9, 1992. In her notice of disagreement, the appellant claimed that the Rating Decision of February 24, 1974, contained clear and unmistakable error. Specifically, she averred that the RO erred when it failed to obtain additional evidence concerning her husband's unemployability. She contends that as a result of that omission the effective date for her husband's total rating was erroneous; i.e., the RO misapplied 38 C.F.R. § 3.400 (1973) or 38 C.F.R. § 3.400 (1974). The RO continued its denial of her claim, and the matter is now before for the Board for appellate review. VA Form 21-0584, Confirmed Rating Decision, February 4, 1993. The issue before the Board is whether the RO made a clear and unmistakable errror in 1974 when it assigned an effective date of November 13, 1973, to the veteran's claim for a total rating for compensation purposes as the result of unemployability due to service connected disability. Clear and unmistakable error is a very specific and unique type of error. It is the kind of legal or factual error which demands the conclusion that the result of the decision would have been greatly different but for the error. 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 clear and unmistakable. Russell v. Principi, 3 Vet.App. 310 (1992). However, simply to claim clear and unmistakable error on the basis that previous adjudications had improperly weighted and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Also, broad allegations of failure to follow regulations or any other non-specific claim of error does not classify as clear and unmistakable error. See Russell v. Principi, 3 Vet.App. 310 (1992); Fugo v. Brown, 6 Vet.App. 40 (1993), motion for review en banc denied Feb. 3, 1994 (per curiam). If a veteran raises clear and unmistakable error, there must be some degree of specificity as to what the alleged error is and, that if true, would be clear and unmistakable error on its face, with persuasive reasons given as to why the result would have been manifestly different but for the alleged error. Additionally, a ". . . determination that there was 'clear and unmistakable error' must be based on the record and the law that existed at the time of the prior AOJ or BVA decision." Russell v. Principi, 3 Vet.App. 310, at 314 (1992). Either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions existent at the time were incorrectly applied. Olson v. Brown, 5 Vet.App. 430, 433 (1993). There must be more than a disagreement as to how the facts were weighted or evaluated, and the error must be outcome determinative. Russell v. Principi, 3 Vet.App. 310, 313 (1992). If there was a clear error in judgment or the conclusion was not based on a consideration of the relevant factors involved in the claim or not in accordance with the law, the Board must decide that a clear and unmistakable error was made, and reverse the prior decision. Porter v. Brown, 5 Vet.App. 233 (1993); Olson v. Brown, 5 Vet.App. 430; Russell v. Principi, 3 Vet.App. 310 (1992). The appellant has implied that the veteran should have received benefits from May 1973. If the veteran had applied for benefits today, in accordance with 38 C.F.R. § 3.400(o)(2) (1994), the RO would be allowed to assign an effective date one year prior to the receipt of the claim if it could be ascertained that the veteran's disability increased during that year. If it could not be established that the veteran's disability had increased during that year, the effective date of the award would be the date the claim was received at the RO. However, if we look at either 38 C.F.R. § 3.400(o) (1973) or 38 C.F.R. § 3.400(o) (1974) [the effective date of the decision and the date of the Rating Decision], neither regulation granted any latitude to the RO in assigning effective dates. That is, when an increased rating was assigned, the date of the rating was either the date of receipt of the claim or the date the entitlement arose, whichever was later. Therefore, while we are sympathetic to the widow's assertions that her husband was unemployable earlier than November 1973, the effective date assigned, by law, could be either the later date of when the claim was received at the RO (November 1973) or when entitlement arose (May 1973) -- if it may be assumed that unemployability as of that date could be established by evidence other than the veteran's avowal that he could no longer work as of that date. Thus, we find that the RO, in accordance with the rules and regulations in effect in 1973 and 1974, assigned the correct effective date for the veteran's total rating. We would also note that the appellant has contended that the RO breached its duty to assist her husband by not seeking any employment records at the time of its decision. In the application for benefits provided to the veteran from the RO in 1973, the veteran failed to notify to the RO of the existence of any records which would have supplemented his claim. Pursuant to the Court's rulings in Ivey v. Derwinski, 2 Vet.App. 320 (1992), Schafrath v. Derwinski, 1 Vet.App. 589 (1991), and Damrel v. Brown, 6 Vet.App. 242 (1994), the RO had no duty to seek and obtain records of which it had no notice. Moreover, the court has ruled, per Fugo v. Brown, 6 Vet.App. 162 (1994), that the RO's failure to assist in the perfection of a record does not constitute clear and unmistakable error. Hence, clear and unmistakable error did not occur. II. New and Material Evidence In September 1983, the RO denied service connection for the cause of the veteran's death. The evidence of record consisted of the veteran's claim folder, various medical documents, and statements from the appellant. Upon reviewing all of the evidence before it, the RO denied the claim stating that the veteran's death was not due to, caused by or related to, or hastened by his service- connected disabilities. VA Form 21-6796, Rating Decision, September 30, 1983. The appellant was duly notified and appealed the RO's decision to the Board. In its 1984 decision, the Board agreed with the reasoning of the RO and denied the appellant's claim for 38 U.S.C.A. § 410 (a.k.a. § 1310) benefits. Board Decision, December 28, 1984. The veteran was duly notified, but did not request that Board reconsider her appeal. This decision then became final. 38 U.S.C.A. § 7103 (formerly § 4003) (West 1991). Even though this decision is final, the claim shall be reopened, and the former disposition reviewed if new and material evidence is secured or presented. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 1991). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The appellant petitioned to reopen her claim in July 1992. In support of her claim, she submitted personal statements concerning the previous decisions by the RO and the Board. Upon accepting the appellant's petition, the RO found that the appellant had not submitted new and material evidence, and that a change in the previous decision was not warranted. The appellant then appealed that decision to the Board. The appellant has argued that because she is now applying for entitlement to DIC benefits under 38 U.S.C.A. § 1318 (West 1991), she is initiating a brand new claim. She further avers that because it is a new claim, she is not required to submit new and material evidence in order to reopen her claim. However, per Isenhart v. Derwinski, 3 Vet.App. 177 (1992), the Court of Veterans Appeals has ruled that an application for cause of death benefits encompasses DIC benefits. See also Hanna v. Brown, 6 Vet.App. 507 (1994). Therefore, the Board must only look at whether the appellant has presented new and material evidence sufficient enough to reopen her claim. Reviewing these newly proffered pieces of evidence, it is clear to the Board that the appellant has not provided any additional information which would etiologically connect the veteran's death to his service-connected disabilities. Thus, her personal statements, while offered in the sincere belief that there was some type of casual connection, are duplicative, redundant, and cumulative. That is, the information provided repeats previously presented information which does not establish any possibility of entitlement to service connection for the cause of the veteran's death. The Board thus finds that a reasonable possibility does not exist that this new evidence, in the context of all of the evidence, might change the prior outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143-144 (1992); 38 C.F.R. § 3.156(a) (1994). Thus, the claim is not reopened. ORDER 1. The RO decision of February 24, 1974, was free of clear and unmistakable error and the claim for entitlement to an earlier effective date for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities, thus entitling the appellant to DIC benefits under 38 U.S.C.A. § 1318 (West 1991), is denied. 2. New and material evidence to reopen the claim for entitlement to service connection for the cause of the veteran's death has not been submitted and the claim has not been reopened. The benefit sought on appeal is denied. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.