Citation Nr: 0301204 Decision Date: 01/22/03 Archive Date: 02/04/03 DOCKET NO. 02-00 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the character of the serviceman's service is a bar to VA survivor's benefits, to include Dependency and Indemnity Compensation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from July 1972 until August 1974 when he was honorably discharged from the United States Marine Corps. The veteran reentered active duty that month, was declared a deserter in August of 1981, and died in December of 1981. The appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) from a January 1999 decision of the Department of Veterans Affairs (VA), Houston, Texas, Regional Office (RO), which denied entitlement to dependency and indemnity compensation (DIC), and nonservice-connected death pension on the basis that the character of the appellant's spouse's service did not entitle his surviving dependents to VA benefits. The appellant was awarded VA pension benefits based on the veteran's honorable service from July 1972 to August 1974. In April 2000, the RO granted the appellant VA pension benefits. Accordingly, this issue is not before the Board at this time. She continued her appeal with respect to the DIC benefits. FINDINGS OF FACT 1. The veteran was honorably discharged from active service on August 22, 1974. He reenlisted that month. 2. The veteran was reported to be in an unauthorized absence status (AU) on August 31, 1981, and a bad conduct discharge was ordered executed on October 23, 1981. The veteran was declared a deserter. On December 19, 1981, before the veteran could be discharged, he died of acute carbon monoxide poisoning. 3. There is no competent evidence that the serviceman was insane at the time he became a deserter in August 1981. CONCLUSION OF LAW The character of discharge of the appellant's spouse, upon whose service benefits were claimed, precludes eligibility for DIC benefits under laws administered by VA. 38 U.S.C.A. §§ 101(2), 1310(b), 5303 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.1(d), 3.12 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002). The newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA, now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). Congress, in enacting the statute, noted the points of balancing the duty to assist with the futility of requiring VA to develop claims where there is no reasonable possibility that assistance would substantiate the claim. Mason v. Principi, 16 Vet. App. 129, 132 (2002) (146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller). When the law and not the evidence is dispositive of the claim, the VCAA is not applicable. Id. at 132. (VCAA was not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a Federal statute that prohibited payments of interest on past-due benefits), aff'd, 28 Fed 3d 1384 (Fed. Cir. 2002). In the case before the Board, the veteran's claims folder has been lost. When a veteran's service medical records are not available, VA's duty to assist is heightened. See Moore v. Derwinski, 1 Vet. App. 401, 406 (1991). However, in this case, the facts are not in dispute. The Board can find no basis to remand this case for additional development. As the law is dispositive in this instant case, the VCAA is not applicable. In any event, the appellant was effectively furnished notice of the types of evidence necessary to substantiate her claim as well as the types of evidence VA would assist her in obtaining. See Generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the claimant has been notified of the applicable laws and regulations and the discussions in the rating decision and statement of the case have informed her of the information and evidence necessary to warrant entitlement to the benefit sought. The Board therefore finds that the notice requirements of the new law and regulation have been met. I. Factual Background The veteran honorably served with the United States Marine Corps from July 1972 until August of 1974. He immediately reenlisted. The record, as cited within the Board of Correction for Naval Records Report of February 2000, indicates that the veteran continued to serve without further incident until February 1979 when he was formally counseled regarding the performance of his duties, the conduct of his personal affairs, and his legal responsibility to liquidate a financial obligation. In December 1980, the veteran was convicted by general court- martial of writing a bad check and an unauthorized absence (UA) from March 27, 1979, to October 10, 1980. He was sentenced to confinement at hard labor for six months, forfeitures of $300 per month for six months, reduction in rank to private, and a bad conduct discharge. In February of 1981, the veteran requested restoration to duty, reduction in the confinement and forfeitures, and suspension of the bad conduct discharge. The commandant of the Marine Corps recommended that clemency be denied and that he receive a punitive discharge adjudicated upon completion of appellate review. In March of 1981, the veteran was arrested by civil authorities and convicted of issuing a check with the intent to defraud. He was sentenced to 180 days confinement with 96 days suspended for four years. The Navy-Marine Corps Court of Military Review affirmed the findings and the sentence of the general court-martial in May of 1981. The veteran was reported in UA status on August 31, 1981, and the bad conduct discharge was ordered executed on October 23, 1981. However, on December 19, 1981, before the veteran could be discharged, he died of acute carbon monoxide poisoning. His death was reported by message to the commandant of the Marine Corps that month. The Naval report notes that he had been in civil confinement for four months for passing bad checks and been declared a deserter. As indicated within the February 2000 naval report, a DD Form 214 is not issued to an individual who dies on active duty, and there is no evidence that a bad conduct discharge was issued to the veteran. In February 2000, the Board of Correction of Naval Records found that the veteran's naval record should be corrected to show that he was issued an honorable discharge on August 22, 1974, by reason of expiration of enlistment. A new DD 214 was issued. II. Analysis Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310. For purposes of this law, the term "veteran" includes a person who died in the active military, naval or air service. 38 U.S.C.A. § 1301. For deaths occurring after December 31, 1956, DIC benefits shall not be paid unless the service member was discharged or released under conditions other than dishonorable, or died while in active service. 38 U.S.C.A. § 1310. In this case, it is essentially contended that the veteran died while in active service. However, in the Report of Casualty Form, DD Form 1300, the veteran's duty status, while "active," was also in an unauthorized absence status since August 31, 1981. In fact, he had been declared a deserter from August 1981 and dropped on the rolls of the military. The term "veteran" under applicable statutes and regulations means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from service by reason of a sentence of a general court-martial, by reason of being a deserter, or as a result of being absent without leave (AWOL) for a continuous period of at least 180 days bars entitlement to benefits. In this case, the veteran had been declared a deserter in August 1981, four months prior to his death in December of 1981. The veteran had not been issued a bad conduct discharge because of his desertion. It would appear, however, that at the time of his death the bad conduct discharge process was underway and, as already noted, the veteran had been declared a deserter. Under these circumstances, the Board declines to find that the veteran can be considered to fall within the provisions of applicable laws and regulations so as to entitle the appellant to DIC benefits based on his service. The fact support a finding that he was not in active service at the time of his death. Moreover, even if the Board were to find that he was still in active service at the time of his death, the fact remains that since he was avoiding duty by desertion and absent without leave at the time of his death, his death cannot be considered to have occurred "in line of duty." 38 C.F.R. § 3.1(m). Therefore, his death cannot be considered "service-connected" as that term is defined in 38 C.F.R. § 3.1(k). Therefore, there can be no entitlement to DIC since 38 U.S.C.A. § 1310 requires that the veteran die from a service-connected disability. The Board notes here that, the appellant has never contended that the veteran's honorable military service from July 1972 to August 1974 caused or contributed to the veteran's death. The veteran died from asphyxiation in 1981 as a result of carbon monoxide poisoning from a barbecued grill being used inside a tent. Finally, the Board acknowledges that entitlement to VA benefits, including DIC benefits under 38 U.S.C.A. § 1310, would not be precluded, if the veteran was insane at the time of committing the events in question. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(b). A finding of insanity requires competent medical evidence showing that veteran was insane at the time the incident occurred. See 38 U.S.C.A. § 5303(b); Zang v. Brown, 8 Vet. App. 246 (1995). The veteran is considered to be insane if, due to a disease, he exhibits a more or less prolonged deviation from his normal method of behavior, interferes with the peace of society, or is so departed from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustments in the social customs of the community in which he resides. Struck v. Brown, 9 Vet. App. 145 (1996); 38 C.F.R. § 3.354(a). In this case, the record does not suggest that this definition of insanity was met at the time of the events which preclude entitlement to DIC. While the Board sympathizes with the appellant, there is not basis for finding that she is entitled to DIC benefits under the facts of this case. ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.