Citation Nr: 0740851 Decision Date: 12/28/07 Archive Date: 01/03/08 DOCKET NO. 04-01 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to accrued benefits based upon a claim for service connection for mesothelioma pending at the time of the veteran's death. 2. Entitlement to service connection for the cause of the veteran's death. 3. Eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35 of Title 38. 4. Entitlement to a burial allowance. 5. Entitlement to plot interment allowance. 6. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 7. Entitlement to improved death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1989. From January 1970 to October 1970, he was stationed in the Republic of Vietnam. The appellant is the veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision rendered by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant's appeal was previously before the Board in January 2006, at which time the Board remanded the veteran's claims for further action by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. The evidence of record at the time of the veteran's death established that his fatal cancer, namely mesothelioma, was etiologically related to service. 2. At the time of the veteran's death, service connection was not in effect for any disability but a claim for service connection for mesothelioma was pending. 3. The veteran is not buried in a cemetery which is used solely for the interment of persons who are eligible for burial in a national cemetery. 4. At the time of his death the veteran was not a member of a reserve component of the Armed Forces. 5. The cemetery where the veteran is buried is not owned by the State or an agency or political subdivision of the State claiming the plot or interment allowance. 6. The claim for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is moot. 7. The claim for improved death pension benefits is moot. CONCLUSIONS OF LAW 1. The appellant is entitled to accrued benefits based upon a pending claim for service connection for mesothelioma. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000(a) (2007). 2. A disability incurred in active duty caused the veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). 3. Eligibility for DEA benefits under Chapter 35, Title 38, United States Code is established. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2007). 4. The criteria for service connection for burial allowance are met. 38 U.S.C.A. § 2307 (West 2002); 38 C.F.R. §§ 3.312, 3.1600 (2007). 5. The criteria for service connection for plot interment allowance are not met. 38 U.S.C.A. § 2307 (West 2002); 38 C.F.R. §§ 3.312, 3.1600 (2007). 6. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. §§ 1318, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2007). 7. Entitlement to improved death pension benefits is dismissed. 38 U.S.C.A. §§ 1521, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.3(a), 3.23, 3.262, 3.271, 3.272, 3.273 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the cause of the veteran's death. She is also seeking service connection for mesothelioma for accrued benefits purposes, eligibility for dependents' educational assistance benefits under Chapter 35 of Title 38, and entitlement to a burial allowance. As the claims are being granted, the Board will not address in detail the RO's compliance with the Veterans Claims Assistance Act of 2000 (VCAA). In essence, the appellant has not been prejudiced by any errors in the RO's execution of its duties under the Act. The Board notes that the appellant has not been informed of the evidence necessary to establish a disability rating and effective date for the disability for which service connection is sought. However, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board simply notes that its decision here is constrained to the issues listed above. The matter of the assignment of an effective date and a disability rating will not be decided by the Board, but will be decided by the RO upon the issuance of the Board's decision. The RO will have the opportunity prior to issuing its rating decision to ensure that complying notice has been provided to the appellant. With respect to the remaining claims of plot interment allowance, DIC under the provisions of 38 U.S.C.A. § 1318 and improved death pension benefits, the Board notes that the decision rests on the interpretation of the law, and the VCAA is inapplicable. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Analysis I. Service Connection for Mesothelioma, for the Purposes of Accrued Benefits Periodic monetary benefits to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid for a period not to exceed two years prior to death, shall be paid to the surviving spouse. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(c). The entitlement of the accrued benefits claimant is derived from the veteran's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the veteran would have received had he lived. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). The Board notes that the statute was amended in January 2003 to eliminate the two-year restriction on the payment of accrued benefits. The revision to the statute, however, applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Because the veteran's death occurred in March 2003, the appellant's claim must be considered under the version of 38 U.S.C.A. § 5121(a) previously in effect, which limited eligibility for accrued benefits to a two-year period. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For certain chronic disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). The veteran argued that his mesothelioma was due to exposure to Agent Orange while serving in the Republic of Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. §§ 3.307(a)(6)(iii). See also VAOPGCPREC 7-93 (Aug. 12, 1993). If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Given the veteran's reported foreign service and his awards and medals while on active duty, and verification that he served in Vietnam, the Board concedes that he was exposed to Agent Orange while in Vietnam. Consequently, there is a presumption that he was exposed to herbicides during his military service in that capacity. However, the list of disorders noted to have a causal relationship to herbicide exposure, from 38 C.F.R. § 3.309(e), does not include mesothelioma. Accordingly, no further consideration is warranted on a presumptive basis, and the veteran's claim will be considered solely on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Hickson element (1), current disability, has been met. It is uncontroverted that the veteran was diagnosed as having mesothelioma With respect to Hickson element (2), in-service incurrence of, it has already been conceded above that the veteran was exposed to Agent Orange while serving in Vietnam. Therefore, arguably, Hickson element (2) has been met. With respect to Hickson element (3), medical nexus, a May 2006 opinion from a VA physician specifically indicated that he had thoroughly reviewed the veteran's records and found that the veteran's exposure to Agent Orange during service in Vietnam may have played at etiological role in the development of mesothelioma. Since the VA physician has stated that it is possible that the veteran's exposure to Agent Orange has a relationship to his development of mesothelioma, the Board finds that the evidence supporting the veterans's claim for service connection for mesothelioma is at least in equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for mesothelioma is warranted and the appellant is entitled to accrued benefits based upon the pending claim for service connection for mesothelioma. II. Service Connection for the Cause of the Veteran's Death Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death. Id. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. See also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992) (addressing requirements for consideration of disabilities attributable to service as contributory, as well as direct cause of death in DIC claims). Service-connected disease or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Additionally, there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service- connected condition was of such severity as to have a material influence in accelerating death, in which case it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The Certificate of Death shows that the veteran died in March 2003. The immediate cause of the veteran's death was mesothelioma. As has been established above, the veteran's accrued benefits claim has been granted therefore it can be argued that at the time of the veteran's death, service connection was in effect for mesothelioma. The appellant has provided two private medical opinions in support of her claim. The private opinions dated in April 2003, suggest that the veteran's death from mesothelioma was caused by his exposure to Agent Orange. The Board finds the two private medical opinions supporting the claim, to be very probative. Therefore, with resolution of reasonable doubt in the appellant's favor, the Board concludes the claim for service connection for the cause of the veteran's death will be granted. III. Eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35 of Title 38 Educational assistance is available to a child or surviving spouse of a veteran who, in the context of the issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. In this case, the Board has determined that the veteran died of a service-connected disability, mesothelioma. Accordingly, the appellant is eligible to receive educational benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3021(a) (2007). IV. Entitlement to a Burial Allowance For the purposes of burial benefits, if a veteran dies as a result of a service-connected disability or disabilities, an amount, not to exceed the amount specified in 38 U.S.C.A. § 2307, may be paid toward the veteran's funeral and burial expenses including the cost of transportation of the body to the place of burial. 38 U.S.C.A. § 2307; 38 C.F.R. §§ 3.1600(a), 3.1601-3.1610. A claim for the burial allowance may be filed by the individual whose personal funds were used to pay burial, funeral, and transportation expenses. 38 C.F.R. § 3.1601(a). Given the Board's determination herein, granting service connection for the cause of the veteran's death, the appellant has met the conditions for basic eligibility for entitlement to burial benefits based upon service-connected death. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600. Accordingly, the appeal is granted. V. Entitlement to Plot Interment Allowance A plot or interment allowance is payable to the person or entity who incurred the expenses in an amount not to exceed the amount specified in 38 U.S.C. 2303(b) (or if the entitlement is under § 3.40 (c) or (d), an amount computed in accordance with the provisions of § 3.40(c)) if the following conditions are met: (2) For claims filed before December 16, 2003: (i) The deceased veteran is eligible for the burial allowance under paragraph (b) or (c) of section § 3.1600; or (ii) The veteran served during a period of war and the conditions set forth in § 3.1604(d)(1)(ii)-(v) (relating to burial in a state veterans' cemetery) are met; or (iii) The veteran was discharged from the active military, naval, or air service for a disability incurred or aggravated in line of duty (or at time of discharge has such a disability, shown by official service records, which in medical judgment would have justified a discharge for disability; the official service department record showing that the veteran was discharged or released from service for disability incurred in line of duty will be accepted for determining entitlement to the plot or interment allowance notwithstanding that the Department of Veterans Affairs has determined, in connection with a claim for monetary benefits, that the disability was not incurred in line of duty); and (iv) The veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (v) The applicable further provisions of this section and §§ 3.1601 through 3.1610. The Board initially notes that the deceased veteran is not eligible for the burial allowance under paragraph (b) of section § 3.1600 since it has already been established that the veteran's death is service connected. Additionally, the veteran is not eligible for burial allowance under paragraph (c) of section § 3.1600 because the Certificate of Death clearly shows he died while at his residence and not while hospitalized. The next prong of § 3.1600(f)(2)(ii) is not met either. The veteran served during a period of war however, the conditions set forth in § 3.1604(d)(1)(ii)-(v) (relating to burial in a state veterans' cemetery) are not met. On the appellant's April 2003 application for burial benefits she indicated that the veteran's burial was not in a state owned cemetery, or section thereof, used solely for persons eligible for burial in a national cemetery. Additionally, she noted that the veteran's burial was not in a national cemetery or cemetery owned by the federal government. Lastly, the veteran was not discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty. Accordingly, this portion of the appellant's claim is denied. V. DIC Benefits Pursuant to 38 U.S.C.A. § 1318 DIC benefits are also payable under certain circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C.A. § 1318 would be paid "in the same manner as if the veteran's death were service connected." 38 U.S.C.A. § 1318(a). The Board's grant of service connection for the cause of the veteran's death under the provisions of 38 U.S.C.A, § 1310 already recognizes that the death of the veteran is from a service-connected disability. The United States Court of Appeals for Veterans Claims (Court) indicated that, only if an appellant's claim for service connection for the cause of the veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the veteran's death under 38 U.S.C. § 1310, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and this aspect of the appellant's claim is dismissed. VI. Improved Death Pension Benefits In order to receive death pension benefits as a surviving spouse, the appellant must be the surviving spouse of a veteran who had the requisite wartime service, and her income must be less than the statutory maximum rate of death pension. 38 U.S.C.A. § 1541. In light of the grant of service connection for the cause of the veteran's death under 38 U.S.C. § 1310, the claim of entitlement to improved death pension benefits under 38 U.S.C. § 1541 is moot, and this aspect of the appellant's claim is dismissed. ORDER Entitlement to accrued benefits based upon a claim for service connection for mesothelioma pending at the time of the veteran's death is granted. Entitlement to service connection for the cause of the veteran's death is granted. Eligibility for DEA benefits under chapter 35 is granted. Entitlement to burial allowance is granted. Entitlement to plot interment allowance is denied. A claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. Entitlement to improved death pension benefits is dismissed. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs