Citation Nr: 1002668 Decision Date: 01/19/10 Archive Date: 02/01/10 DOCKET NO. 06-21 668A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether recoupment of payment under the Radiation Exposure Compensation Act, from the Department of Veterans Affairs' Dependency and Indemnity Compensation, is proper. ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to January 1946 and from October 1952 to December 1970. He died in June 2001, and the appellant is his surviving spouse, who is challenging the recoupment of payment under the Radiation Exposure Compensation Act, from the Department of Veterans Affairs' Dependency and Indemnity Compensation that she is paid. This matter is before the Board of Veterans' Appeals (Board) on appeal of an adverse determination in September 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which determined that VA must withhold the appellant's Dependency and Indemnity Compensation (DIC) to recoup the amount she had previously received under the Radiation Exposure Compensation Act of 1990 (RECA). It is noted that during the appeal process, the appellant executed a power of attorney in favor of the Disabled American Veterans in May 2005 and also appointed a private attorney to represent her in the matter, as documented on VA Form 21-22, dated in July 2005. In a statement dated in December 2005, she declared that her representative was no longer her attorney of record and that the RO should proceed without the attorney. The attorney, however, subsequently submitted statements on behalf of the appellant, in June 2006 and August 2008. The Disabled American Veterans in September 2009 also submitted a statement on behalf of the appellant. The Board sent the appellant a letter in October 2009, requesting that she clarify her representative, and that if she did not respond in 30 days, it would be assumed that she wished to represent herself. The letter, which was sent to her last known address, was returned as undeliverable. Given the foregoing efforts to clarify representation, the Board will proceed to review the claim, assuming that the appellant is not represented. FINDINGS OF FACT 1. In a March 2002 rating decision, the RO granted service connection for the cause of the Veteran's death due to carcinoma of the lung on account of the Veteran's in-service exposure to ionizing radiation; the appellant was notified of her award of DIC in a March 2002 letter. 2. In June 2002, the appellant was awarded a lump sum payment of $75,000 on account of the Veteran's death due to lung cancer under the RECA. 3. The RO began withholding payments of DIC in September 2005, due to the appellant's receipt of a payment under the RECA. CONCLUSION OF LAW Recoupment of payment under the RECA, from DIC, is proper. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2005); 38 C.F.R. § 3.715 (2008); Veteran Benefits Improvement Act of 2004, Pub. L. No 108-454, 118 Stat. 3598, § 302 (Dec. 10, 2004). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under the circumstances presented in this case, it is not the factual evidence that is dispositive of the present appeal, but rather the application of the law and regulations to the undisputed facts. In such cases, the VCAA is not applicable. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (regarding entitlement to recognition as surviving spouse for purposes of reinstatement of death pension benefits, neither the duty to assist or the duty to notify provisions of VCAA are implicated when question is limited to interpretation and application of a statute). As the law in this case is clear, there is no other option but to apply the plain meaning of the statute. VA does not have any discretion in halting recoupment of the RECA payments, from the appellant's DIC payments. As the appellant has failed to state a claim upon which relief may be granted, the claim must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 429 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The Veteran's death certificate shows that he died in June 2001. The immediate cause of death was acute cardiorespiratory arrest due to metastatic carcinoma of the lung, of months duration. In August 2001, the appellant filed a claim for service connection for the cause of the Veteran's death secondary to radiation exposure. In a March 2002 rating decision, the RO granted service connection for the cause of the Veteran's death due to carcinoma of the lung, on account of the Veteran's in-service exposure to ionizing radiation, effective April 1, 2002. Service connection was established because the Veteran's lung cancer was a presumptive radiogenic disease under 38 C.F.R. § 3.309(d). The appellant was notified of her award of DIC in a March 2002 letter. In April 2005, VA was notified by the Department of Justice, Torts Branch, Civil Division, that in June 2002 the appellant was paid a lump sum award of $75,000 under the RECA, on account of the Veteran's death due to lung cancer. Documents subsequently added to the file by the appellant show that in a January 2002 letter, the Department of Justice informed her that her claim under the RECA had been approved in the amount $75,000. She was asked to complete an Acceptance of Payment form letter. She subsequently signed and dated an Acceptance of Payment letter, dated in February 2002, which indicated her acceptance of the $75,000 payment. A document from a financial institution shows that in June 2002, a payment of $75,000 under the RECA program was deposited directly into the appellant's account. In an April 2005 letter, the RO informed the appellant of its proposal to withhold her monthly DIC, effective July 1, 2005, until the full amount of the RECA payment was recouped. She was also notified that there would be no overpayment created in her case. In a September 2005 letter, the RO notified the appellant that it was taking action to withhold her DIC payments, effective September 1, 2005, to recoup the amount she was paid (i.e., $75,000) under the RECA. Analysis Historically, under 38 C.F.R. § 3.715, payment of DIC was barred on behalf of an individual based upon death resulting from the same disease for which a RECA payment was made. A significant change was made to the law governing DIC on December 10, 2004, which permitted payment of DIC benefits even though a payment was made under the RECA program. Specifically, 38 U.S.C. § 1310, deaths entitling survivors to dependency and indemnity compensation, was amended by adding a paragraph that specifically states the following: "A person who receives a payment under the provisions of the Radiation Exposure Compensation Act of 1990 (42 U.S.C. 2210 note) shall not be deprived, by reason of the receipt of that payment, of receipt of dependency and indemnity compensation to which that person is otherwise entitled, but there shall be deducted from payment of such dependency and indemnity compensation the amount of payment under the Act." Veteran Benefits Improvement Act of 2004, Pub. L. No 108-454, 118 Stat. 3598, § 302(b) (Dec. 10, 2004). With respect to the DIC payments, the amendment took effect for months beginning after March 26, 2002. In consequence to the change in law, VA subsequently amended 38 C.F.R. § 3.715, which now provides that an individual who has received a RECA payment based upon a veteran's death will not be denied DIC to which the individual was entitled beginning after March 26, 2002; however, the amount of the RECA payment will be deducted from the amount of compensation payable under 38 C.F.R. § 3.309(d) or the amount of DIC payable. See 71 Fed. Reg. 44,919 (Aug. 8, 2006). In this case, the VA is recouping, from the appellant's DIC payments, that amount for which she had been paid under the RECA. In other words, $75,000 paid to the appellant under the RECA program is being deducted from her DIC payment. Further, it is noted that the basis for both types of payments is the same, that is, the Veteran's death was the result of lung cancer that developed in consequence of his exposure to ionizing radiation during service. An RO audit conducted in December 2008 shows that from September 2005 through November 2008, VA has withheld $41,271 from her DIC payments for recoupment purposes, and that there was a balance of $33,729 to be recouped before DIC payments may be resumed. The Board finds that the recoupment of the RECA payment, from the appellant's DIC, is in accordance with the law and is thus proper. It has been argued that the Veteran's death resulted from conditions other than lung cancer, which were related to his military service. It has been suggested that exhumation of the Veteran's body for a post-mortem autopsy would validate her contention. (The appellant has asserted that the idea of exhumation was not hers.) In a statement received in July 2005, R.M., M.D., who was also the attending physician who signed the Veteran's death certificate, indicated that he has reviewed the medical record available to him, and opined that the Veteran had multiple service-related problems, as well as the radiation-associated diseases. He felt that a post- mortem autopsy, if one were to be performed, would reveal malignant prostate tissue with probable metastasis. He also noted impotence, osteoarthritis, and emphysema as possible service-related conditions. It is noted that the death certificate has not been amended, based on the physician's statement. In any case, this argument pertaining to other conditions leading to death does not change the outcome of the decision. Service connection for the Veteran's cause of death has not been established on any basis other than that due to lung cancer under 38 C.F.R. § 3.309(d), and therefore entitlement to DIC is solely based on the Veteran's fatal lung cancer. It is further noted that the claims file contains documentation that in January 2006 the appellant has been granted a discharge, as a result of filing for Chapter 7 bankruptcy. In an argument dated in June 2006, the appellant's representative at that time argued that the recoupment process be terminated. Notwithstanding the RO's reference to the amount to be recouped from DIC as a "debt", such as in the audit issued to the appellant in December 2008, there is no overpayment created in this case. The appellant was notified of this in an April 2005 letter, wherein she was informed that future DIC payments would merely be withheld to recoup the full amount of the RECA payment. (ORDER on Next Page) ORDER As recoupment of payment under the Radiation Exposure Compensation Act, from the Department of Veterans Affairs' Dependency and Indemnity Compensation, is proper, the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs