Citation Nr: 0724809	
Decision Date: 08/10/07    Archive Date: 08/20/07

DOCKET NO.  05-01 129	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in New York, New York


THE ISSUES

1.  Entitlement to Dependents' Indemnity Compensation (DIC) 
benefits under the provisions of 38 U.S.C.A. § 1318.  

2.  Entitlement to service connection for the cause of the 
veteran's death.  

3.  Entitlement to dependent's educational assistance (DEA) 
under 38 U.S.C.A. Chapter 35.  


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

G. Jivens-McRae, Counsel



INTRODUCTION

The veteran served on active duty from September 1943 to 
January 1946, and again from August 1951 to February 1970.  
He died November 27, 1995.  The appellant is his surviving 
spouse.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2004 rating decision of the 
RO.  

The issues of service connection for the cause of the 
veteran's death, and entitlement to DEA under 38 U.S.C.A. 
Chapter 35 being remanded are addressed in the REMAND portion 
of the decision below and are REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.  

The Board notes that all claims for DIC under the provisions 
of 38 U.S.C.A. § 1318 were previously the subject of a 
temporary stay.  In accordance with the directions of the 
U.S. Court of Appeals for the Federal Circuit (Federal 
Circuit) in National Organization of Veterans' Advocates, 
Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. 
Cir. 2003) (NOVA II), the temporary stay on the adjudication 
of affected 38 U.S.C. §§ 1311(a)(2) and 1318 claims was 
lifted, except where a survivor seeks to reopen a claim that 
was finally decided during the veteran's lifetime on the 
grounds of new and material evidence.  

There is no indication the appellant is seeking to reopen a 
previously denied claim; hence, the Board finds the stay is 
lifted in this case.  



FINDINGS OF FACT

1.  The veteran was service connected for hypertension, renal 
tuberculosis and post operative removal of calculi, salivary 
duct.  Each of these service-connected disabilities were 
rated at a noncompensable level prior to his demise.  

2.  A total compensation rating was not in affect for ten 
years at the time of the veteran's death; nor is the veteran 
shown to have applied for compensation and not received total 
compensation rating due solely to clear and unmistakable 
error in a VA decision.  



CONCLUSION OF LAW

The criteria for DIC benefits under the provisions of 38 
U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 
2002); 38 C.F.R. § 3.22 (2006).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA 
is required to notify the appellant of any evidence that is 
necessary to substantiate her claim.  This includes notifying 
the appellant of the evidence VA will attempt to obtain and 
that which the appellant is responsible for submitting.  

Proper notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that the VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his possession that 
pertains to the claim.  See 38 C.F.R. § 3.159 (2006).  

These notice requirements apply to all five elements of a 
service connection claim: veteran status, existence of a 
disability; a connection between the veteran's service and 
the disability; degree of disability; and the effective date 
of the disability.  See Dingess v. Nicholson, 19 Vet. App. 
473 (2006).  

Such notice must be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits is issued by 
the agency of original jurisdiction.  Pelegrini v. Principi, 
18 Vet. App. 112, 119 (2004).  

VCAA notice errors (either in timing or content) are presumed 
prejudicial, but VA can proceed with adjudication if it can 
show that the error did not affect the essential fairness of 
the adjudication by showing: 1) that any defect was cured by 
actual knowledge on the part of the claimant; 2) that a 
reasonable person could be expected to understand from the 
notice what was needed; or 3) that a benefit could not have 
been awarded as a matter of law.  Sanders v. Nicholson, 487 
F.3d 881 (2007).  

In this case, in letters of November 2002 and August 2004, 
the RO provided notice to the appellant regarding what 
information and evidence is needed to substantiate the claim 
of DIC entitlement pursuant to 38 U.S.C.A. § 1318.  The 
letters specified what information and evidence must be 
submitted by the appellant, what information and evidence 
will be obtained by VA, and the need for the appellant to 
advise VA of or submit any further evidence that pertains to 
her claim.  

The Board notes that the appellant did not receive notice as 
to the disability rating and the effective date elements, as 
required by Dingess.  Therefore, VCAA notice is presumed 
prejudicial in both timing and content.  

Nevertheless, the Board finds that such presumption of 
prejudice is rebutted because these errors did not affect the 
essential fairness of the adjudication.  Despite the 
inadequate notice provided to the appellant, the Board finds 
no prejudice to the appellant in proceeding with the issuance 
of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 
394 (1993).  

In this regard, the Board concludes that, since the 
preponderance of the evidence is against this particular 
claim, any question as to the rating and effective date to be 
assigned is moot.  

The Board notes at this point that the RO has taken 
appropriate action to comply with the duty to assist the 
appellant with the development of her claim.  The record 
includes VA treatment records, to include the veteran's 
terminal hospital report.  There are no known additional 
records to obtain.  

A hearing was offered, and the appellant declined.  As such, 
the Board finds that the record as it stands includes 
sufficient competent evidence to decide this claim.  See 38 
C.F.R. § 3.159(c)(4).  Under these circumstances, the Board 
finds no further action is necessary to assist the appellant 
with her claim.  


Analysis

VA law provides that if a veteran's death is not determined 
to be service-connected, a surviving spouse may still be 
entitled to DIC benefits.  Under 38 U.S.C.A. § 1318(a), 
benefits are payable to the surviving spouse of a deceased 
veteran in the same manner as if the death were service 
connected.  

A deceased veteran for purposes of this provision is a 
veteran who dies not as the result of his or her own willful 
misconduct and who either was in receipt of, or entitled to 
receive, compensation at the time of death for a service-
connected disability(ies) rated totally disabling.  38 
U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2006).  

"Entitled to receive" means that at the time of death the 
veteran had service-connected disability(ies) rated totally 
disabling by VA, but was not receiving compensation because, 
in part, the veteran had applied for compensation but had not 
received total disability compensation due solely to clear 
and unmistakable error (CUE) in a VA decision concerning the 
issue of service connection, disability evaluation, or 
effective date. 38 C.F.R. § 3.22(b)(3).  

The service- connected disability(ies) must have been either 
continuously rated totally disabling for 10 or more years 
immediately preceding death, or continuously rated totally 
disabling for at least 5 years from the date of the veteran's 
separation from service.  The total rating may be schedular 
or based on unemployability. 38 C.F.R. § 3.22.  

Except with respect to a claim for benefits under the 
provisions of 38 U.S.C.A. § 1318 and certain other cases, 
issues involved in a survivor's claim for death benefits will 
be decided without regard to any prior disposition of those 
issues during the veteran's lifetime.  38 C.F.R. § 20.1106 
(2006).  

The case law has also held that "hypothetical entitlement" 
consideration for DIC benefits under 38 U.S.C.A. § 1318 was 
allowable for 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).  As the appellant's claim was received by VA 
in October 2002, such consideration is not warranted.  

In this case, the record shows that at the time of the 
veteran's death in November 1995, service connection had been 
established for hypertension, renal tuberculosis and post 
operative removal of calculi, salivary duct.  

Each of these service-connected disabilities was rated at a 
noncompensable level at the veteran's death.  A total 
compensation rating was not in effect.  

The appellant does not assert nor is there any indication 
that the veteran had not received a total compensation rating 
due solely to clear and unmistakable error in an earlier VA 
decision.  There is no evidence of any action in the 
veteran's case for many years prior to VA receipt of the 
appellant's application for DIC benefits.  

There is no evidence that, for the ten years prior to his 
death in November 1995, the veteran had claimed a total 
compensation rating or was unemployable because of a service-
connected disability. Therefore, the claim for DIC benefits 
under the provisions of 38 U.S.C.A. § 1318 must be denied in 
this case.  

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against this claim.  



ORDER

The claim for DIC benefits under the provisions of 38 
U.S.C.A. § 1318 is denied.  




REMAND

The appellant asserts that service connection is warranted 
for the cause of the veteran's death.  She maintains that, 
when the veteran served on the USS Essex and the USS 
Wisconsin in 1964, the veteran was involved in refurbishing 
work in the Brooklyn Navy Yard.  As a result of this work and 
being stationed on these vessels, she states that he was 
exposed to asbestos and that this was the cause of his death 
due to lung cancer.  

With respect to the assertions that the veteran was exposed 
to asbestos caused or contributed in producing the fatal lung 
cancer, the Board notes that the file does show that he 
served on the USS Essex, the USS Wisconsin and other vessels 
and in the Brooklyn Shipyard in the 1960's.  

There is no specific statutory guidance with regard to 
asbestos-related claims, nor has the Secretary promulgated 
any regulations in regard to such claims.  However, VA has 
issued a circular on asbestos-related diseases.  DVB Circular 
21-88-8, Asbestos-Related Diseases (May 11, 1988) provides 
guidelines for considering compensation claims based on 
exposure to asbestos.  The information and instructions from 
the DVB Circular have been included in the VA Adjudication 
Procedure Manual, M21-1 (M21-1), Part VI, § 7.21.  

In December 2005, M21-1, Part VI was rescinded and replaced 
with a new manual, M21-1MR.  The U.S. Court of Appeals for 
Veterans Claims (Court) has held that VA must analyze an 
appellant's claim for service connection for asbestosis or 
asbestos-related disabilities under the administrative 
protocols under these guidelines.  See Ennis v. Brown, 4 Vet. 
App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993).  

The applicable section of M21-1MR is Part IV, Subpart ii, 
Chapter 1, Section H, topic 29.  It lists some of the major 
occupations involving exposure to asbestos, including mining, 
milling, work in shipyards, insulation work, demolition of 
old buildings, carpentry and construction, manufacture and 
servicing of friction products such as clutch facings and 
brake linings, manufacture and installation of roofing and 
flooring materials, asbestos cement and pipe products, and 
military equipment.  High exposure to respirable asbestos and 
a high prevalence of disease have been noted in insulation 
and shipyard workers.  The latent period for asbestos-related 
diseases varies from 10 to 45 or more years between first 
exposure and development of disease.  Also of significance is 
that the exposure to asbestos may be brief (as little as a 
month or two) or indirect (bystander disease).  M21-1MR, Part 
IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21-
1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29.  

In short, with respect to claims involving asbestos exposure, 
VA must determine whether military records demonstrate 
evidence of asbestos exposure during service, develop whether 
there was pre-service and/or post-service occupational or 
other asbestos exposure, and determine whether there is a 
relationship between asbestos exposure and the claimed 
disease.  M21-1MR, Part IV, Subpart ii, Chapter 1, Section H 
Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases 
(May 11, 1988).  The relevant factors discussed in the manual 
must be considered and addressed in assessing the evidence 
regarding an asbestos related claim.  See VAOPGCPREC 4-2000.  

Finally, during the pendency of this appeal, on 
March 3, 2006, the Court issued a decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), which held that the VCAA notice requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to 
all five elements of a service connection claim.  

This notice must include notice of the type of evidence 
necessary to receive a higher disability rating, as well as 
notice of the type of evidence necessary for the assignment 
of an effective date if a higher rating is awarded.  In the 
present appeal, the appellant was not provided with notice of 
the type of evidence necessary to establish a disability 
rating or effective date for the disability on appeal 
pursuant to Dingess.  

Accordingly, the remaining matters are REMANDED to the RO for 
the following actions:

1.  The appellant should be given an 
opportunity to submit evidence to support 
her assertions that the veteran died of 
lung cancer that was due to the claimed 
exposure to asbestos during his extensive 
period of service in the Navy.  The 
appellant should be asked to provide 
information concerning all treatment 
received by the veteran for lung disease 
since service.  Any VA records should be 
obtained by the RO.  

2.  The RO should communicate with the 
appellant and inform her of the 
evidentiary requirements and 
responsibilities for submitting relevant 
evidence pertaining to her claim for 
service connection for the cause of the 
veteran's death, pursuant to VCAA notice 
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b).  Inform the appellant of what 
is needed to assign a disability rating 
and an effective date in the event that 
service connection is granted.  See 
Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  

3.  Following completion of all indicated 
development, the remaining claims should 
be readjudicated in light of all the 
evidence of record.  If any benefit 
sought on appeal remains denied, the 
appellant should be provided with a 
Supplemental Statement of the Case.  An 
appropriate period of time should be 
allowed for response.  

Thereafter, if indicated, the case should be returned to the 
Board for the purpose of appellate disposition.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).  



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals




 Department of Veterans Affairs