Citation Nr: 1009251 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 08-37 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Michael W. Dale, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to July 1967. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Nashville, Tennessee, that in pertinent part, denied the appellant's claim of entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. In December 2009, the appellant testified at a hearing before the undersigned Veterans Law Judge. The transcript is in the record. FINDINGS OF FACT The Veteran was not rated totally disabled for 10 continuous years immediately preceding his death; was not totally disabled from date of his discharge for a period of not less than 5 years immediately preceding his death; was not a former prisoner of war (POW); and was not entitled to receive total disability compensation by way of the eight possible exceptions listed under 38 C.F.R § 3.22(b). CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2009); 38 C.F.R. § 3.22 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and to assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2009); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). However, in the present decision, the Board finds that as a matter of law the appellant is not entitled to DIC under the provisions of 38 U.S.C.A. § 1318. The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534 (2002). In such claims where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In cases such as this, VA is not required to address the duty to notify or assist a claimant, where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). However, the appellant was provided with a notification letter in October 2007 that specifically explained the requisite criteria necessary to substantiate a claim for DIC benefits pursuant to 38 U.S.C.A. § 1318. Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318. If a Veteran's death is determined not to be service connected, entitlement to Dependency and Indemnity Compensation (DIC) may be established in the same manner as if the Veteran's death were service connected where it is shown that the death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death, (2) was rated totally disabled for a period of at least five years from the date of his discharge or release from active duty or (3) was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22(a). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). Even if the Veteran was not actually receiving total disability compensation, he still may have been entitled to receive total disability compensation by way of one of the eight possible exceptions listed under 38 C.F.R. § 3.22(b). As to the first two exceptions, the term entitled to receive can mean that the Veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in 38 C.F.R. § 3.22(a)(2) but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the Veteran's lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the Veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service- connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in 38 C.F.R. § 3.22(a)(2). 38 C.F.R. § 3.22(b)(1)-(2). In addition, the term entitled to receive can also mean that at the time of death, the Veteran had service-connected disability rated totally disabling by VA, but was not receiving compensation due to six more possible circumstances: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; (3) the Veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (5) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b)(3). In cases in which the survivor seeks to establish entitlement to DIC under 38 U.S.C.A. § 1318 via CUE, she must provide the date or the approximate date of the decision or otherwise provide sufficient detail so as to identify the decision sought to be attacked collaterally, and establish how based on the evidence of record and the law at the time of the decision, the Veteran would have been entitled to receive a total rating. Cole v. West, 13 Vet. App. 268 (1999). Previously, under the hypothetical entitlement approach, for claims for DIC benefits filed before January 21, 2000, if the survivor of a deceased Veteran could prove that a Veteran would have been entitled to receive compensation for a 100 percent disabling service-connected disability for ten years prior to death, then the survivor could claim DIC benefits under 38 U.S.C.A. § 1318, even though the deceased Veteran did not actually receive such compensation. Green v. Brown, 10 Vet. App. 111 (1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v. West, 11 Vet. App. 307 (1998); Cole v. West, 13 Vet. App. 268 (1999). However, effective January 21, 2000, the regulations were changed to preclude survivors of Veterans from bringing claims for DIC benefits using a hypothetical entitlement approach for claims pending as of January 21, 2000. 38 C.F.R. § 3.22; Rodriguez v. Nicholson, 19 Vet. App. 275 (2005); 65 Fed. Reg. 3,388 (Jan. 21, 2000). Subsequently, applying the three-part test outlined in Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the new version of 38 C.F.R. § 3.22, barring the use of the hypothetical entitlement theory, does not have an impermissible retroactive effect and may be applied to bar claims for DIC benefits filed by survivors prior to January 21, 2000. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The Federal Circuit found that the application of the amended 38 C.F.R. § 3.22 did not create an unlawful retroactive effect because it did not retrospectively diminish any rights to benefits. Notably however, the claimant in the Rodriguez case had filed her DIC claim before the decision in Green v. Brown, 10 Vet. App. 111 (1997) was issued (before February 1997). The decision left open the question of whether hypothetical entitlement was available to an appellant who filed her claim after February 1997, but prior to the regulatory change in January 2000. However, in response to that question, the Federal Circuit most recently held that that the regulatory changes eliminating the hypothetical entitlement theory of DIC, as discussed in Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008), are retroactive even where an appellant filed her claim after February 1997. Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). In essence, under the holdings of Rodriguez and Tarver, the amended regulation 38 C.F.R. § 3.22 does not have an impermissible retroactive effect, and may be applied in order to bar DIC claims filed by survivors under the hypothetical entitlement theory, no matter when the claim was filed. Thus, there is no longer a theory of hypothetical entitlement to DIC benefits. The Veteran in this case died on August [redacted], 2007. The cause of death was listed as cerebrovascular accident. Chronic obstructive pulmonary disease was listed as a significant factor contributing to his death. At the time of his death, the Veteran was in receipt of a 100 percent disability rating for a psychiatric condition, to include schizoaffective disorder claimed as posttraumatic stress disorder (PTSD) and a nervous condition, effective January 16, 2002, the date of receipt of his claim for benefits. He had no other service- connected disabilities. Furthermore, there is no indication or allegation that he was a former POW. He was not in actual receipt of compensation for a service-connected disability rated as totally disabling by VA for any of the required periods of time. 38 C.F.R. § 3.22(a). In her claim for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318, the appellant contends that the Veteran should have been in receipt of total 100 percent disability compensation due to service-connected psychiatric disability for at least 10 years prior to his death in August 2007. That claim is, in essence, a claim of hypothetical entitlement. The appellant contends that the Veteran's service-connected psychiatric disability was of such severity that the 100 percent rating could have been in effect as far back as 1985. At the hearing the appellant related that the Veteran was not able to work since 1985 due to his service- connected psychiatric disability. In support of her claim, the appellant submitted a copy of a November 1990 Social Security Administration (SSA) decision and related records, which determined that the Veteran met the disability insured status requirements for SSA benefits in January 1985, when the Veteran became unable to work. The SSA award letter of November 1990 listed the Veteran's disabilities as severe depression, PTSD, borderline intelligence, and a history of chronic and severe alcohol dependence. However, the Veteran's claim for service connection for a psychiatric disability was denied by the Board in June 1990, and by the RO in June 1991. As the Veteran did not appeal those decisions, the decisions became final. 38 U.S.C.A. § 7105(c). Accordingly, as the appellant's claim is based on hypothetical entitlement, it is now barred as matter of law, no matter when the claim for DIC benefits was filed. The Board concludes that any possible theory of hypothetical entitlement is barred pursuant to 38 C.F.R. § 3.22. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008); Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). It follows that since any proffered theory of hypothetical entitlement for § 1318 benefits is barred as a matter of law, the appellant can only establish entitlement to § 1318 benefits if she shows the Veteran was entitled to receive total disability compensation by way of one of the eight possible exceptions listed under 38 C.F.R. § 3.22(b) for the applicable period prior to his death. However, there is no allegation by the appellant nor does any evidence of record show that the Veteran met the criteria for any one of the eight exceptions listed under 38 C.F.R. § 3.22(b). There has been no allegation or evidence of CUE in any prior RO or Board decision, nor has the appellant or her representative identified any other basis for granting this claim. 38 C.F.R. § 3.22(b)(1). With regard to CUE, the appellant has not provided the date or the approximate date of the decision or otherwise provide sufficient detail so as to identify the decision sought to be attacked collaterally, and establish how based on the evidence of record and the law at the time of the decision, the Veteran would have been entitled to receive a total rating. Cole v. West, 13 Vet. App. 268 (1999). In fact, neither the appellant nor her representative has raised any claim for CUE. In addition, the appellant has not submitted additional service department records that would provide a basis for reopening a previous claim and awarding a total service-connected disability retroactively. 38 C.F.R. § 3.22(b)(2). She also does not meet any of the remaining six exceptions listed under 38 C.F.R. § 3.22(b)(3)(i)-(vi). Therefore, the Board finds no legal basis for granting the appellant's claim pursuant to 38 U.S.C.A. § 1318. The Board is sympathetic to the appellant's claim and her particular circumstances. Nonetheless, VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c). Her claim for DIC benefits pursuant to 38 U.S.C.A. § 1318, to include as a claim for hypothetical entitlement, is barred as a matter of law. In essence, the facts of this case are not in dispute and the law is dispositive. Accordingly, the appellant's claim under the provisions of 38 U.S.C.A. § 1318 must be denied for lack of legal merit. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where the law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs