Citation Nr: 1423938 Decision Date: 05/28/14 Archive Date: 06/06/14 DOCKET NO. 11-16 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to enhanced Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1311(a)(2). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from June 1966 to June 1968. He died on May [redacted], 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO granted the appellant's claim of entitlement to DIC under 38 U.S.C.A. § 1318. The appellant appealed for enhanced DIC under 38 U.S.C.A. § 1311(a)(2). See 38 U.S.C.A. §§ 1311(a)(2), 1318. The appellant testified before the undersigned Veterans Law Judge in February 2014. A review of the Virtual VA electronic records storage system does not reveal any additional evidence, other than a transcript of the February 2014 hearing, that is not currently associated with the paper claims folder. FINDINGS OF FACT The Veteran was entitled to receive compensation for a service connected disability that was rated totally disabling for at least 8 continuous years immediately preceding his death. CONCLUSION OF LAW The eligibility criteria for payment of enhanced DIC under 38 U.S.C.A. § 1311(a)(2) have been met. 38 U.S.C.A. § 1311(a)(2) (West 2002); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claim herein decided, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis The appellant contends that she is entitled to additional (or enhanced) DIC under 38 U.S.C.A. § 1311(a)(2) because, in her view, the Veteran was receiving or entitled to receive compensation for a service connected disability that was rated totally disabling for at least 8 continuous years immediately preceding his death. 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; 38 C.F.R. § 3.5(a) (2013). A surviving spouse may be paid DIC at an increased (or enhanced) rate if at the time of the Veteran's death he or she was in receipt of, or was entitled to receive (or but for the receipt of retired pay or retirement pay was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least 8 years immediately preceding the Veteran's death. Except with respect to benefits under the provisions of 38 U.S.C.A. § 1311(a)(2) , § 1318, and certain cases involving individuals whose VA benefits were forfeited because of treason or subversive activities, issues involved in a survivor's claim for death benefits are decided without regard to prior disposition of those issues during the Veteran's lifetimes. Here, because the appellant's claim is predicated upon 38 U.S.C.A. § 1311(a)(2), the Board must consider prior adjudications of issues that were made during the Veteran's lifetime. "Entitled to receive" means that the Veteran filed a claim for disability compensation during his or her lifetime and, in pertinent part, the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the specified period but for clear and unmistakable error in a VA decision on a claim filed during the Veteran's lifetime; 38 C.F.R. § 3.22(b). The Court also has held that "hypothetical entitlement" consideration for DIC benefits under 38 U.S.C.A. § 1318 was allowable for certain claims filed prior to January 21, 2000, i.e., the effective date of the VA regulation prohibiting "hypothetical entitlement." Rodriguez v. Nicholson, 19 Vet. App. 275 (2005). Since the Veteran died in March 2009, there is no basis for retroactive consideration of "hypothetical entitlement" in this case. At the time of the Veteran's death he was service-connected for myocardial infarction with reduced ejection fraction with a 100 percent disability rating effective August 20, 2001, and diabetes mellitus with a 20 percent disability rating effective August 20, 2001. A May 2011 rating decision found clear and unmistakable error in the effective date assigned for the Veteran's service-connected myocardial infarction and diabetes mellitus and assigned effective dates for both disabilities from May 8, 2001, for accrued purposes only. The RO denied appellant enhanced DIC because the Veteran was not in receipt of compensation for a service-connected disability that was rated totally disabling for a continuous period of at least 8 years immediately preceding his death. The Veteran died on May [redacted], 2009; the Veteran died 30 hours prior to the 8 year anniversary on May 8, 2009. The appellant contends that, notwithstanding this fact, she should be awarded enhanced DIC under 38 U.S.C.A. § 1311(a)(2) because the Veteran was in fact totally disabled for 8 or more years prior to his death. In Lehman v. Derwinski, 1 Vet. App. 339 (1991), the Court, interpreting the modern equivalent to § 3.172, held that where a rating had been in effect for four years and either 363 or 364 days and the total period had equaled five 365-day periods due to leap years, the 5-year requirement had been met. However, in a subsequent opinion in Smith (Raymond) v. Brown, 5 Vet. App. 335 (1993), the Court concluded that the Lehman holding rendered in the context of the particularly compelling facts of that case did not warrant a conclusion that the five-year provision was satisfied by a rating that had been in effect in Smith for four years, ten months, and 22 days. In this case, the Veteran died 30 hours prior to the eight years. The Board notes that in the period (May 8, 2001, to May 8, 2009) that the Veteran was rated as totally disabled there were two leap years; 2004 and 2008. In Lehman the Court further noted that in the appellant's case "the gap can be closed by counting days rather than years and taking into account leap years in 1984 and 1988." Id. The Court also stated that "Surely the drafters of § 3.344 did not intend that the time period suggested-"(5 years or more)"-be strictly applied. In fact, in appellant's case, the gap can be closed by counting days rather than years and taking into account leap years in 1984 and 1988." The Court further stated that even if the regulation was so narrowly construed as to require that the rating be in effect for five years or more, it appeared that the disability for which the Veteran received compensation for was in existence for five years. Though Lehman dealt with a different VA regulation, the stabilization of disability evaluations, the Board finds that the underlying principles, as stated by the Court, also apply in this case. By counting the two extra days that are a result of the two leap years the 30 hour gap can be closed. Thus, at the time of the Veteran's death he was rated as totally disabling for a continuous period of eight years. Therefore, the Board finds that the appellant meets the eligibility criteria for enhanced DIC under 38 U.S.C.A. § 1311(a)(2). In sum, as a result of two leap years, the Veteran was rated as totally disabling for a continuous period of eight years. Therefore, enhanced DIC under 38 U.S.C.A. § 1311(a)(2) is warranted. ORDER Enhanced DIC under 38 U.S.C.A. § 1311(a)(2) is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs