Citation Nr: 9915475 Decision Date: 06/03/99 Archive Date: 06/15/99 DOCKET NO. 96-10 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from November 1970 to November 1973. FINDINGS OF FACT 1. In a rating decision dated in February 1994, the Regional Office (RO) granted service connection for PTSD, and rated it 10 percent disabling effective November 1993. The veteran did not appeal that decision, nor did he file a claim for an earlier effective date or an increased rating. He had no claims pending on the date of his death. 2. The veteran died in October 1994 as the result of a self- inflicted gunshot wound. 3. The veteran's death was found to be service-connected, and the appellant, his surviving spouse, was awarded dependency and indemnity compensation (DIC). CONCLUSION OF LAW Accrued benefits are not payable. 38 U.S.C.A. § 5121(a) (West 1991 and Supp. 1999); 38 C.F.R. § 3.1000 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The appellant, who is the surviving spouse of a veteran who committed suicide, is receiving DIC benefits and seeks accrued benefits based on her claim that the veteran was 100 percent disabled by his service-connected PTSD since 1988. The claims folder reveals that the veteran served on active duty from November 1970 to November 1973. In September 1988 he filed a claim of entitlement to service connection for, inter alia, PTSD, identifying as stressors an incident in service during which he shot two men. That claim was denied in a rating decision dated in March 1989. The veteran was notified of that decision by letter dated in March 1989, and did not appeal it. In support of a November 1993 attempt to reopen his previously denied service connection claim, the veteran submitted copies of materials from his service personnel records maintained by the National Personnel Records Center, including materials from the Department of the Army regarding an investigation of the shooting incident he described as a PTSD stressor when he filed his original claim in 1988. Also submitted were VA medical records dated between June 1988 and October 1993, among them a VA Summary Progress Note/Psychology dated in 1993 containing a diagnosis of PTSD related to Vietnam, a reference to 1989 PTSD treatment, and a conclusion that at the time of the report the veteran was too disturbed to participate in a particular rehabilitation program due to depression and PTSD. A VA Compensation and Pension Examination was conducted in February 1994, and the diagnoses at that time were bipolar affective disorder currently depressed, PTSD moderate, and alcohol dependence by history currently not active by history. A Global Assessment of Functioning score of 45 was reported. It was reported that the veteran's bipolar mood swings were complicated by his PTSD. In April 1994 the RO granted service connection for PTSD, and rated it 10 percent disabling, effective November 8, 1993, the date of the claim. The veteran was informed of that decision and did not appeal it. In October 1994, the veteran committed suicide. In November1994 the appellant filed a claim of entitlement to DIC. The RO concluded that it was not clear whether the veteran's service-connected PTSD or his nonservice-connected bipolar disorder, which a physician had concluded was aggravated by his PTSD, caused him to commit suicide. The RO resolved the doubt in favor of the appellant and granted her claim for DIC benefits pursuant to 38 U.S.C.A. § 1310. In February 1995 the appellant submitted a document expressing disagreement with the April 1994 rating decision to the extent it granted an effective date of November 1993 and rated the disability 10 percent, seeking an earlier effective date of 1988 and an increased rating, from 10 percent to 100 percent, for that disability. The RO characterized that claim as one for accrued benefits, and denied it in November 1995. A Statement of the Case issued in November 1995 explained that there was no clear and unmistakable error (CUE) in any prior RO decisions, that the evidence of record in 1989 did not show the veteran had combat and did not verify PTSD stressors, and that not until February 1994 was there clear evidence of PTSD, which was only 10 percent disabling. A substantive appeal was received in February 1996, and the appellant requested a hearing before a Board member in Washington, D.C. In April 1998 the RO notified the appellant that, pursuant to the February 1998 decision in Jones v. West, 136 F. 3d 1296 (Fed. Cir. 1998), the appellant's claim remained denied. In a hearing before the undersigned in September 1998, the appellant testified that the veteran provided enough information to permit verification of his claimed stressors in 1988, and that the veteran did, in fact, have a confirmed diagnosis of PTSD in his 1988 and 1989 VA treatment records. Appellant further asserted that the veteran's psychiatric disability prevented him from appealing the 1989 denial of service connection. She argued that the rating assigned by the RO in 1994, effective in 1993, was incorrect, as records from three medical care providers reflect a higher level of disability. Appellant also claimed service connection for the aggravation of the veteran's bipolar disorder by his service-connected PTSD pursuant to Allen v. Brown, 7 Vet. App. 439 (1995), and Karnas v. Derwinski, 1 Vet. App. 308 (1991). Appellant contends the RO committed CUE in its 1994 rating decision assigning the effective date and the disability rating, and in its 1989 rating decision denying service connection, as in both instances it had access to information that showed the disability was present, was due to service and was totally disabling since 1988. Analysis 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, hereinafter referred to as accrued benefits, that are due and unpaid for a period not to exceed two years shall be paid to a veteran's surviving spouse. 38 U.S.C.A. § 5121(a) (West 1991 and Supp. 1999); 38 C.F.R. § 3.1000 (1998). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid. 38 U.S.C.A. § 5101(a). RO decisions concerning claims for benefits are subject to revision on the grounds of CUE. See 38 U.S.C.A. § 5109A(a); 38 C.F.R. § 3.105(a). Review to determine whether CUE exists in a case may be instituted by the Secretary on the Secretary's own motion or upon request of the claimant. 38 U.S.C.A. § 5109A(c). A veteran's claim to disability benefits terminates at his death. Richard ex rel. Richard v. West, 161 F. 3d 719 (Fed. Cir. 1998). As noted in Haines v. West, 154 F. 3d 1298 (Fed. Cir. 1998), the compensation provisions found in chapter 11 of title 38 clearly distinguish between disability compensation, which is generally available only to veterans, and death benefits, which are payable to survivors. Section 5112(b) expressly terminates a veteran's right to receive disability benefits on the last day of the month prior to his death, and Congress has established in section 5121(a) a singular exception to this rule in the form of a wholly separate procedure for designated survivors such as the appellant to recover limited amounts of disability benefits due and unpaid at the veteran's death. Richard; Haines. The appellant filed the claim construed as an accrued benefits claim in February 1995. A surviving spouse's claim for accrued benefits is derivative of the veteran's claim; a consequence of the derivative nature of the surviving spouse's entitlement is that, without the veteran having a claim pending at the time of his death, the surviving spouse has no claim upon which to derive her application. Jones v. West, 136 F. 3d 1296, 1299 (Fed. Cir. 1998). On the date of his death, the veteran had no claims for VA benefits pending. He was notified of the award of service connection for PTSD in a letter dated in May 1994, and did not appeal either the November 1993 effective date or the 10 percent rating assigned. He died before the one-year time period provided in 38 U.S.C.A. § 7105 for filing an appeal had run, but on the date of his death he had not claimed either an increased rating or an earlier effective date. The appellant asserts that the veteran told her he was dissatisfied with the 1994 decision, but she explains that he did not file an appeal of that decision because he was too incapacitated by his disability to do so, and so under 38 C.F.R. § 3.109 he should have been granted an extension to pursue his appeal. Application of that regulation would not afford an advantage to appellant, however, as the veteran filed nothing that could be construed to be a claim for an earlier effective date or for an increased rating, or an appeal of the 1994 decision, timely or not timely. The appellant's claim for accrued benefits was clearly timely, as it was filed within one year after the veteran's death. 38 U.S.C.A. § 5121(c). However, as the veteran had no claims pending on the date of his death, an award of benefits to the appellant on an accrued basis is not warranted. Similarly, there is no legal basis for a favorable decision based on the appellant's allegations of the existence of CUE in the 1989 and 1994 rating decisions. The veteran did not allege CUE in those decisions during his lifetime. The appellant cannot allege CUE in those decisions after his death: as held by the Federal Circuit in Haines, in light of the express terms of 38 U.S.C.A. § 5109A(c), a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE because the survivor is not the disability benefits claimant. Accordingly, a finding of CUE in the 1989 and 1994 rating decisions is not appropriate here. With regard to the appellant's argument that service connection should be granted for bipolar disorder as secondary to the veteran's service-connected PTSD on the basis of aggravation of the nonservice-connected disorder by the service-connected disability pursuant to Allen, the Board notes that that compensation claim was not raised by the veteran during his life, and therefore cannot be raised by the appellant for the same reasons the claims for earlier effective date and increased ratings cannot be. Based upon the foregoing, the Board finds that there is no legal basis upon which to award accrued benefits to the appellant. 38 U.S.C.A. § 5121(a) (West 1991 and Supp. 1999); 38 C.F.R. § 3.1000 (1998). Accordingly, the appeal must be denied. ORDER Entitlement to accrued benefits is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals