Citation Nr: 18132347
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-12 596
DATE:	September 6, 2018
ORDER
New and material evidence having been received, the claim of entitlement to service connection for cause of the Veteran’s death is reopened
The claim of entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied.

REMANDED
The reopened claim of entitlement to service connection for the cause of the Veteran’s death is remanded. 


FINDINGS OF FACT
1. A September 2006 rating decision denied the claim of entitlement to service connection for the Veteran’s cause of death; the appellant did not appeal the decision or submit any pertinent evidence within the appeal period and the decision is now final.
2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for the cause of the Veteran’s death.
3. The Veteran died in September 2006. He was not a former prisoner of war (POW), and he was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after his discharge from active service, or for 10 or more years prior to his death. 
CONCLUSIONS OF LAW
1. New and material evidence has been presented to reopen the claim of entitlement to service connection for the Veteran’s cause of death. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018).
2. The criteria for DIC benefits pursuant to the provisions of 38 U.S.C.A § 1318 have not been met. 38 U.S.C. § 1318 (West 2014); 38 C.F.R. § 3.22 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had honorable active duty service with the United States Army from September 1957 to July 1960 and from July 1960 to July 1966. He passed away in June 2006, and the appellant is his surviving spouse. 
The appellant testified at a Board hearing before the undersigned Veterans Law Judge in May 2018. A transcript of that hearing is of record.
Duties to Notify and Assist
Neither the appellant nor her attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for cause of the Veteran’s death. 
Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014).
“New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). 
For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The RO initially denied service connection for the cause of the Veteran’s death in September 2006. The RO determined that the evidence of record failed to establish that the Veteran’s service-connected disabilities were either the primary cause of death or contributed to his death. The appellant did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103.
In December 2014, the appellant filed a claim to reopen the claim of entitlement to service connection for cause of death. 
Evidence received since the September 2006 rating decision includes an August 2018 private medical opinion from J.E., M.D. opining that PTSD caused the Veteran to smoke at a higher level, which contributed to his respiratory failure due to his chronic obstructive pulmonary disease (COPD).  
The medical evidence constitutes new and material evidence. This follows because the evidence relates to a previously unestablished element that is necessary to grant entitlement to service connection for the cause of the Veteran’s death. Accordingly, reopening of the claim for service connection for the cause of the Veteran’s death is warranted.
2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1318. 
Pursuant to 38 U.S.C. § 1318 (a), VA will pay DIC benefits to the surviving spouse of a veteran if the veteran’s death was not the result of his own willful misconduct, and if at the time of death, the veteran was in receipt of or entitled to receive compensation for service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the veteran’s release from active duty and for 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 POW. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22.
The total rating may be schedular or based on individual unemployability (TDIU). 38 C.F.R. § 3.22.
“Entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for a period specified in 38 C.F.R. § 3.22 (a)(2) but for clear and unmistakable error (CUE) committed by VA; or (2) a retroactive award of benefits is warranted under 38 C.F.R. § 3.156 (c); or (3) the veteran, at the time of death, had a service-connected disability that was continuously rated totally disabling for the period specified in 38 C.F.R. § 3.22 (a)(2), but was not receiving compensation due to withholding or personal election. 38 C.F.R. § 3.22 (b) (2018).
Based on a thorough review of the evidence, the Board finds that the appellant is not entitled to DIC under 38 U.S.C. § 1318.
At the time of the Veteran’s death, service connection was in effect for PTSD, rated as 10 percent from July 28, 1994, to December 6, 2000, 30 percent from December 7, 2000, to February 3, 2002, and 50 percent thereafter; bilateral hearing loss rated as 10 percent from March 10, 1983 to December 6, 2000, and 40 percent thereafter; and tinnitus rated as 10 percent disabling from December 7, 2000. His combined schedular rating was 10 percent from March 10, 1983, 20 percent from July 28, 1994, 60 percent from December 7, 2000, and 70 percent from February 4, 2002. He was awarded a TDIU in a May 2002 rating decision, effective February 4, 2002. The Veteran died in June 2006. Consequently, the Veteran died more than five years following his discharge from service in July 1966 and did not have a service-connected disability rated as totally disabling for at least 10 years prior to his death. Moreover, as the evidence of record does not show that the Veteran was a former POW, the requirements of 38 U.S.C. § 1318 have not been met, and the claim for DIC benefits under that provision must be denied.
The Board acknowledges the appellant’s argument regarding CUE in the May 2002 rating decision, which granted a TDIU effective February 4, 2002. She argued that the Veteran was unemployable prior to February 4, 2002. The appellant disagreed with how the RO weighed and analyzed the facts and asserted that had the VA not committed the alleged error, the Veteran would have been awarded a total disability rating in July 1994, and she would therefore be entitled to DIC under 38 U.S.C. § 1318. 
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).
A claimant cannot make a free-standing claim for an earlier effective date without making an assertion of CUE in the prior decision, any free-standing claim for an earlier effective date for the assigned ratings is not a valid claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity). To the extent that the appellant’s DIC claim under 38 U.S.C. § 1318 is based on an assertion of CUE in the May 2002 rating decision, which assigned an effective date of February 4, 2002, for TDIU, the Board finds that she cannot bootstrap a CUE claim impermissibly on to a procedurally deficient earlier effective date claim. The appellant’s earlier effective date claim is deficient procedurally because it cannot be used to collaterally attack a prior final rating decision and, to the extent that an earlier effective date claim is included as part of her DIC claim under 38 U.S.C. § 1318, the latter claim must be dismissed pursuant to Rudd. In Rudd, the Court held that appellants are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Thus, the appellant cannot rely on this procedurally deficient claim in order to get a vague and unsubstantiated CUE claim adjudicated by the Board as part of her DIC claim under 38 U.S.C. § 1318.
In this case, a May 2002 rating decision granted TDIU effective February 4, 2002; the Veteran did not appeal the decision. He passed away on June 10, 2006, without ever indicating that he disagreed with the assigned effective date for the TDIU. Therefore, there was no claim concerning this rating decision that remained pending at the date of his death which would overcome the law that states that a Veteran’s claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236 (1996); see also 38 C.F.R. § 20.1302 (2018).  Although he died several years after the May 2002 rating decision was issued, the Veteran also did not submit any statements relevant to this claim within one year of the May 2002 rating decision that would render said rating decision non-final for VA purposes under 38 C.F.R. § 3.156 (b). See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).
The May 2002 rating decision cannot be collaterally attacked by filing a freestanding earlier effective date claim. As such, the Board cannot adjudicate a claim for an effective date earlier than February 4, 2002, for the assignment of a TDIU based on an allegation of CUE in the May 2002 rating decision without violating the Court’s express prohibition against freestanding earlier effective date claims found in Rudd. See Rudd v. Nicholson, 20 Vet. App. 296. Therefore, there is no legal entitlement to an effective date earlier than February 4, 2002, for the award of TDIU. As a result, the Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death.
For the reasons stated above, the Board finds that the criteria for DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have not been met. See Sabonis v. Brown, 6 Vet. App. 426, 430; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

REASONS FOR REMAND
The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. 
The appellant asserts that the Veteran’s PTSD contributed to his cause of death. Specifically, the appellant asserts that the Veteran smoked more than usual when he experienced night terrors. The appellant also submitted evidence that his service-connected hearing loss contributed to his death.
Dependency and indemnity compensation (DIC) is awarded to a veteran’s surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312.
Generally, service connection cannot be established for a disability that is attributed to tobacco use during service. 38 C.F.R. § 3.300. However, secondary service connection is allowed if a service-connected disability proximately caused the Veteran to use tobacco products after service. See VAOPGCPREC 6-2003. According to the VA General Counsel opinion, where secondary service connection for disability due to tobacco use is at issue, adjudicators must resolve (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id. If these questions are answered in the affirmative, the secondary disability may be service connected. Id. 
A VA medical opinion was obtained in December 2015. The VA examiner stated that there was no evidence to support or suggest that the Veteran’s history of tobacco abuse was secondary to his PTSD. It was explained that there “are many reasons why people smoke and it would be purely speculative to state that the Veteran began smoking due to symptoms of PTSD.” There was also no evidence that his PTSD lessened the chance of the Veteran’s survival from his respiratory failure. Therefore, the VA examiner concluded that there was no objective evidence to support or suggest that the Veteran’s service-connected PTSD substantially or materially contributed to his death. 
At the May 2018 Board hearing, the appellant testified that it was difficult for the Veteran to quit smoking. The Veteran continued smoking up until his death, even when he was on oxygen. She explained that the Veteran experienced stress from working and raising children. Also, every month or every two months, the Veteran had nightmares about his in-service stressors. 
The appellant submitted an August 2018 private medical opinion from Dr. E. The appellant and the Veteran’s daughter reported that the Veteran experienced nightmares and would be up the rest of the night smoking cigarettes following such nightmares. Dr. E. opined that the anxiety and nervousness associated with the Veteran’s PTSD caused him to release stress hormones, which contributed to a higher level of smoking. Dr. E. explained that the nicotine in cigarettes had a calming effect. Therefore, his increased smoking contributed to his COPD and subsequent death. Dr. E. also opined that the Veteran had severe hearing loss, which caused stress hormones to be released in his body, thereby causing him to smoke more.  
The Board finds that another opinion is needed to determine the nature and etiology of the cause of the Veteran’s death. First, the Board notes that the medical opinions of record do not adequately address whether the Veteran’s service-connected bilateral hearing loss either caused or substantially and materially contributed to the cause of the Veteran’s death. With respect to the Veteran’s claim that his PTSD increased his tobacco use which caused his COPD, the medical opinions of record do not sufficiently address whether the Veteran’s tobacco use as a result of his PTSD was a substantial factor in causing his COPD and whether the COPD would not have occurred but for the use of tobacco products caused by his PTSD. Accordingly, a remand is required to obtain another VA medical opinion. 
The matter is REMANDED for the following action:
1. The RO or AMC should undertake appropriate development to obtain any outstanding records pertinent to the appellant’s claim. If any requested records are not available, the record should be annotated to reflect such and the appellant notified in accordance with 38 C.F.R. § 3.159 (e).
2. Thereafter, the RO or the AMC must obtain a VA medical opinion by a physician(s) with sufficient expertise to determine the nature and etiology of the Veteran’s cause of death. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. 
Following a review of the relevant records and lay statements, the examiner must state an opinion as to the following: 
(a)	Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD caused him to use, or increase the use of, tobacco products after service. 
(b)	Whether it is at least as likely as not (50 percent probability or greater) that the use of tobacco products as a result of the Veteran’s PTSD was a substantial factor in causing his COPD. 
(c)	Whether it is at least as likely as not (50 percent probability or greater) that the COPD would have occurred but for the use of tobacco products caused by his PTSD.
(d)	Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected hearing loss either caused or substantially and materially contributed to the cause of the Veteran’s death. 
In providing the requested opinions, the examiner must consider and discuss the August 2018 private medical opinion and the lay statements provided by the appellant and her daughter regarding the Veteran’s tobacco use. 
The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
3. The RO or the AMC should also undertake any other development it determines to be warranted. 
4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action.
 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. N. Nolley, Associate Counsel 

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