Citation Nr: 0118626 Decision Date: 07/17/01 Archive Date: 07/24/01 DOCKET NO. 01-01 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a compensable disability for arthralgia of the right knee, post-total right knee replacement, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The veteran had active service from January 1943 to March 1946. This appeal is from an August 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The appellant limited her claim to the issue of entitlement to accrued benefits. The December 2000 statement of the case (SOC) reveals that the RO essentially limited the issue to basic entitlement to accrued benefits, finding there to be no entitlement for lack of evidence of the type required by regulation. The RO did not reach the question of the extent of the late veteran's right knee disability. Consistently, the Board will not reach the matter of rating the veteran's disability. FINDINGS OF FACT 1. In January 1999, the veteran filed an informal claim for increased rating of his service-connected arthralgia, right knee, reporting a knee replacement in 1996. 2. The veteran died March 6, 1999, of myocardial infarction. 3. In May 1999 the RO requested, and in June 1999 obtained, private medical records of the veteran's June 1997 right total right knee replacement as treatment of end-stage arthritis of the right knee. 4. Evidence was not in the veteran's claims file at the date of his death that was essentially complete and of sufficient weight to establish the level of his right knee disability when substantiated by other evidence in the file at the date of death. CONCLUSION OF LAW The appellant is not entitled to increased (compensable) disability benefits on an accrued basis. 38 U.S.C.A. § 5121 (West Supp. 2000); 38 C.F.R. § 3.1000(a), (d)(4) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background In April 1946, VA granted service connection for traumatic arthritis of the right knee based on a service separation examination report of history of knee injury in a jeep accident in 1943. Multiple subsequent x-ray studies found the knee normal, and, after a VA examiner found the right knee normal and diagnosed arthralgia in June 1948, VA changed the rating nomenclature to arthralgia and reduced the rating to zero percent (noncompensable). There is no further documentation in the veteran's VA claims file relating to the veteran's right knee until January 1999. On January 14, 1999, the RO received the veteran's claim for an increased rating for the right knee. He reported treatment beginning in 1993 and that he had knee replacement in 1996 [sic] by Dr. Hefley. He also submitted a signed authorization for release of information, stating the dates and locations of treatment. In letters dated May 18, 1999, the RO requested the veteran to submit evidence in support of his claim and asked Dr. Hefley to furnish evidence of medical treatment of the veteran. On June 7, 1999, the RO received medical records from Dr. Hefley dating from July 1994 to July 1997 showing treatment for arthritis of the right knee, including total right knee replacement for end-stage osteoarthritis in June 1997. In February 2000, the appellant filed a VA form used to apply for several VA benefits for veterans' survivors, reporting that the veteran had died March 6, 1999. She indicated the form was to apply only for accrued benefits. In June 2000, the RO requested the appellant to provide a copy of the veteran's death certificate which was received that same month. The RO disallowed the appellant's claim in August 2000 for lack of sufficient evidence in the veteran's claims file at the date of his death of entitlement to an increased rating for the right knee disability. The RO notified the appellant of the rating decision by letter of August 2000, enclosing a copy of the rating decision. In December 2000, the RO provided the appellant a statement of the case (SOC) in response to her notice of disagreement with the denial of the claim. The SOC included notice of the statute and regulation based upon which VA had denied her claim. In her substantive appeal of February 2001, the appellant referred to the SOC. She asserted, in essence, that the veteran informed VA of his right knee replacement and that VA knew or should have known that evidence of a knee replacement (prosthesis) for a service-connected knee would immediately entitle him to a one-year temporary total rating. She noted that VA did not request medical evidence from Dr. Hefley until May 18, 1999; in the meantime, the veteran died. She argued that although the medical report from Dr. Hefley was not in VA's "constructive custody" at time of death, the evidence was identified and available, and would have been of record prior to the veteran's death had VA requested it immediately. She asserted that VA should grant her claim for that reason. II. Analysis The November 9, 2000, enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), [hereinafter VCAA of 2000] prescribed VA's duties to notify claimants for VA benefits of forms and information necessary to submit to complete and support their claims; to provide necessary forms; and to assist in the development of evidence. No forms are outstanding in the instant case. The VA rating decision and the SOC notified the appellant of the evidence necessary to substantiate her claim. Her substantive appeal demonstrated her familiarity with the crucial element of her claim, evidence of record at the time of the veteran's death. Moreover, there is no indication that other evidence was necessary to resolve the claim, the nature of the dispute being essentially legal. VA has no outstanding duty in this case pursuant to the VCAA of 2000. Upon the death of the veteran, periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by VA to which he was entitled at the time of his death under existing ratings or decision, or those based on evidence in the file at the date of death (hereinafter referred to as "accrued benefits"), and due and unpaid for a period not to exceed two years prior to the last date of entitlement as provided in 38 C.F.R. 3.500(g), may be paid to a surviving spouse. 38 U.S.C.A. § 5121 (West Supp. 2000); 38 C.F.R. § 3.1000(a) (2000). [E]vidence in the file at date of death, as used in [38 C.F.R. § 3.1000(a)] subsection (a), will be considered to have been met when there is on file at the date of the veteran's death: (i) . . . evidence, including uncertified statements, which is essentially complete and of such weight as to establish . . . degree of disability for disease or injury when substantiated by other evidence in file at date of death . . .. 38 C.F.R. § 3.1000(d)(4) (2000). The medical evidence from Dr. Hefley was not in the claims file on the date of the veteran's death. The evidence pertinent to the level of the veteran's right knee disability actually in the claims file on the date of his death comprised his statement, the authorization for release of information, and material filed before September 1948. The regulation on its face requires at least two items of evidence, (1) evidence of such weight as to establish the degree of disability, and (2) other evidence in the file at date of death. Id. Even if the veteran's January 1999 statement alone were of sufficient weight to rate his increased rating claim, nothing else in the file at the date of his death substantiates it. The authorization for release of information conveys no information about the condition of the veteran's right knee that is not in the statement. Certain evidence placed in the veteran's claims file after his death may be deemed "in file at date of death." Zevalkink v. Brown, 6 Vet. App. 483, 490-492 (1994), citing Hayes v. Brown, 4 Vet. App. 353, 160-61 (1993). In Hayes, the United States Court of Appeals for Veterans Claims (then the United States Court of Veterans Appeals) (Court) found that paragraphs 5.25(a) and 27.08 of the VA Claims Adjudication Manual, M21-1, were substantive, with the force of law because the affected a substantive right to accrued benefits. Hayes, 4 Vet. App. at 160, citing Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990). The former of these was subsequently amended and its successor provision rescinded in August 1996. The latter manual provision was revised in a manner not pertinent to this claim in December 1999. Specifically, the former cited manual provisions allowed service department records; reports of VA hospitalization; reports of treatment of examinations in VA medical centers including those in outpatient treatment folders; reports of hospitalization, treatment or examinations authorized by VA; and reports of autopsy made by VA on the date of death to be deemed "in the file at date of death." VA Manual M21-1, 5.25(a). Subsequent to the Hayes decision, VA amended the manual to provide that "non-VA hospital reports are deemed 'in file' at death whenever they are found adequate for rating purposes under section 3.327(b)(1)." M21-1, Part VI, Change 34 (May 8, 1995). VA rescinded this provision with M21-1, Part VI, Change 51 (Aug. 16, 1996), without substitution of similar provision. See generally VA Manual M21-1, Part VI, Chap. 5 (Mar. 21, 2000). The successor provision includes as "in file" at the date of the veteran's death, even if not reduced to writing or physically placed in the claims file until after death, the following: service department records; reports of VA hospitalizations; reports of hospitalization, treatment or examinations authorized by VA; and reports of autopsy made by VA on the date of death. VA Manual M21-1, Part VI, 5.06 c (Mar. 21. 2001). The current provision does not refer to any other regulation to provide that non-VA medical records may be construed or otherwise treated as VA records for within the meaning of 38 C.F.R. § 3.1000(d)(4). In Hayes, 4 Vet. App. at 160-61, the Court did not discuss in detail the other VA manual provision noted above, i.e., VA Manual M21-1, 27.08. The Court merely noted that it provided for a claimant for accrued benefits to submit evidence after the date of the veteran's death to confirm certain types of prima facie evidence that was in the claims file at the date of the veteran's death and that the Board should determine whether and how it had substantive effect should its application be necessary on further adjudication of the Hayes case. Id. at 161. VA Manual M21-1, Part IV, 27.08, "Evidence in File (38 C.F.R. § 3.1000(d)(4)," pertains to evidence establishing the relationship and other factors affecting entitlement to accrued benefits. Examples given of evidence that may enter the claims file after the veteran's death are documents to confirm prima facie evidence of spousal relationship or income. The appellant's claim must be decided based on law and regulation in effect at the time the veteran filed his claim, or on changes to the law favorable to her claim made while her claim has been pending. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board is otherwise bound to current laws and regulations governing VA benefits, 38 U.S.C.A. § 7104(c) (West 1991), and cannot base a legal decision on repealed laws or regulations or on rescinded manual provisions that may have had the force of law when in effect. No provisions of the VA Claims Adjudication Manual, M21-1, applicable to her claim permit the medical evidence that entered the VA record in June 1999 to be deemed in the file at the time of the veterans death. The appellant makes a strong argument that appears to touch on a point of fundamental fairness, that evidence sufficient to establish her entitlement would have been in the claims folder in time had VA acted faster. She asserts that the doctrine of constructive possession should suffice to enable VA to treat the medical evidence received and entered in the claims file after the veterans death as constructively in the claims file before the veteran's death. For the purpose of adjudicating claims for VA benefits, records that are in VA's control and may reasonably be expected to be before agency decision-makers are constructively before agency decision-makers. Bell v. Derwinski, 2 Vet. App. 611 (1992). The essence of the Bell ruling is VA control over the pertinent records. Such control can arguably be imputed at least to certain government records maintained by other agencies, as the inclusion of service department records in the VA Manual list shows. VA Manual M21-1, Part VI, 5.06c (Mar. 21, 2001). Such control over private medical records does not exist before they are actually in VA possession. Even though Dr. Hefley responded in about three weeks, he was not compelled to respond quickly enough for the records to have been in VA possession prior to the veteran's death, there was insufficient control over those records prior to VA's actual possession for the Board to extend constructive possession to them. The appellant's argument about the results of VA's delay in action is essentially an equitable argument: it is unfair that VA delay resulted in acquisition of dispositive evidence too late. The Board of Veterans' Appeals lacks the authority to provide equitable relief. The Secretary of Veterans Affairs is authorized by law to provide equitable relief when he determines that VA benefits have been denied because of administrative error on the part of the Federal Government or any of its employees. 38 U.S.C.A. § 503(a) (West1991). ORDER Entitlement to a compensable disability for arthralgia of the right knee, post-total right knee replacement, for the purpose of accrued benefits is denied. KATHLEEN K. GALLAGHER Acting Member, Board of Veterans' Appeals