Citation Nr: 1028988 Decision Date: 08/03/10 Archive Date: 08/16/10 DOCKET NO. 08-22 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 3. Entitlement to nonservice-connected death pension benefits. 4. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April to September 1984. He also had various periods of active duty for training with the Army National Guard. The appellant is the Veteran's widow. These matters come before the Board of Veterans' Appeals (Board) from a September 2005 rating decision and a July 2006 administrative decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In the September 2005 decision, the RO denied entitlement to service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C.A. § 1318. In the July 2006 decision, the RO denied entitlement to accrued benefits and nonservice- connected death pension. FINDINGS OF FACT 1. The Veteran died in June 2005; the immediate cause of death was cardiac tamponade, due to or as a consequence of metastatic squamous cell carcinoma of the tongue, and a seizure disorder was a significant other condition which contributed to death. 2. At the time of the Veteran's death, service connection was in effect for a seizure disorder, rated 10 percent disabling, effective August 2, 1993. 3. The service connected seizure disorder contributed to the Veteran's death. 4. The claim for entitlement to DIC under 38 U.S.C.A. § 1318 is moot. 5. The grant of service connection for the cause of the Veteran's death is a greater benefit than an award of nonservice- connected death pension. 6. The Veteran did not have a pending claim for benefits at the time of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1131, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2009). 2. 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 & Supp. 2009); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2009). 3. The claim for entitlement to nonservice-connected death pension benefits is dismissed. 38 U.S.C.A. §§ 1311, 1541 (West 2002 & Supp. 2009); 38 C.F.R. § 3.23 (2009). 4. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. §§ 5101(a), 5121 (West 2002 & Supp. 2009); 38 C.F.R. § 3.1000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). As the Board is granting the claim for service connection for the cause of the Veteran's death, the claim is substantiated, and there are no further VCAA duties as to that issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the claim for accrued benefits, there are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is indeed the situation in this case. The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the payment of accrued benefits. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). A claim for accrued benefits must be adjudicated on the basis of the evidence of record at the relevant time in question - the date of the Veteran's death. 38 C.F.R. § 3.1000. No reasonable possibility exists that further notice or assistance would aid in substantiating the claim and any deficiencies of notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the duty to notify and assist is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). The United States Court of Appeals for Veterans Claims (Court) has held that, in such cases where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Analysis Service Connection Pursuant to 38 U.S.C.A. § 1310, DIC is paid to a surviving spouse of a qualifying Veteran who died from a service connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of the veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in June 2005. His June 2005 death certificate listed the primary cause of death as cardiac tamponade, due to or as a consequence of metastatic squamous cell carcinoma of the tongue. There were no other conditions listed as contributing to his death. However, an officially amended death certificate completed in April 2006 reveals that a seizure disorder was added as a contributory cause of the Veteran's death. At the time of his death, service connection was in effect for a seizure disorder. Therefore, a disability of service origin was at least a contributory cause of his death. There is no other evidence concerning the relationship between the Veteran's service-connected seizure disorder or any other disability and his death. The amended death certificate explicitly lists his seizure disorder as a significant other condition that contributed to his death. See 38 C.F.R. § 3.312(c). Thus, the Board concludes that the Veteran's service-connected seizure disorder, while not a principal cause of his death, contributed substantially or materially to his death. Resolving all reasonable doubt in favor of the appellant, the Board concludes that the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107(b); 38 C.F.R. § 3.312. DIC under 38 U.S.C.A. § 1318 & Death Pension 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 already recognizes that the death of the Veteran was the proximate result of a disease or injury incurred in service. The Court has 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.A. § 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, the claim for entitlement to DIC under 38 U.S.C.A. § 1318 is moot, and this aspect of the appellant's claim is dismissed. As for the claim for nonservice-connected death pension benefits, death pension is available to the "surviving spouse" of a Veteran because of his nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C.A. §§ 101, 1541 (West 2002 & Supp 2009); 38 C.F.R. §§ 3.23, 3.3(b)(4) (2009). As discussed above, DIC benefits have been granted based upon the award of service connection for the cause of the Veteran's death. For the entire period since the appellant's claim for death pension benefits was received in November 2005, the grant of DIC benefits for the cause of the Veterans death provides the greater award. See 38 U.S.C.A. §§ 1311, 1541. In light of the grant of DIC benefits for service connection for the cause of the Veteran's death, the claim for nonservice-connected death pension benefits is moot, and the claim is therefore dismissed. Accrued Benefits An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits. The revision to the statute 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). Accordingly, the two-year limit on benefits is not applicable in this case. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). The appellant contends that she is entitled to accrued benefits because the Veteran's service-connected seizure disorder should have been rated 100 percent disabling prior to his death. For example, in a February 2008 statement (VA Form 21-4138) she wrote that the Veteran's seizure disorder had worsened in the years prior to his death, that he had intended to file a claim for an increased rating for his seizure disorder, and that he had contacted VA regarding his disability and was denied an increased rating over the telephone and was never sent paperwork to apply for an increased rating. Also, the appellant stated that she had contacted VA in order to get herself and her children included in the Veteran's benefits, but that they were never added or given the paperwork to do so. The most recent claim by the Veteran is his August 1993 claim for service connection for a seizure disorder. This claim was initially denied in a May 1994 rating decision. The Veteran appealed this decision to the Board and the claim was subsequently granted by the RO in an October 1996 rating decision following a March 1996 remand by the Board. The appeal was returned to the Board, the issue was construed as a claim for an increased rating for a seizure disorder, and the Board denied a rating in excess of 10 percent for a seizure disorder in a June 1997 decision. A review of the Veteran's claims folder does not reveal that he ever submitted any formal or informal unadjudicated claims for VA benefits subsequent to the Board's June 1997 decision. Therefore, there can be no basis for an award of accrued benefits, and this aspect of the appellant's claim does not present a basis for which relief may be granted, and has no legal merit. As the disposition of this claim is based on law and not the facts of this case, the claim must be denied based on lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. The appeal, as to entitlement to DIC under 38 U.S.C.A. § 1318, is dismissed. The appeal, as to entitlement to nonservice-connected death pension benefits, is dismissed. Entitlement to accrued benefits is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs