Citation Nr: 0809789 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 00-18 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318(b). (This issue is also addressed in a companion case under a separate docket number.) REPRESENTATION Appellant represented by: V. A. Wenners, Jr., Attorney WITNESSES AT HEARING ON APPEAL Appellant and S.K. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is the surviving spouse of the veteran who served on active duty from December 1968 to July 1970, with service in the Republic of Vietnam from July 1969 to July 1970. The veteran died in November 1998. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court"), which vacated a July 2004 Board decision and remanded the case for additional development. The issue initially arose from a January 1999 rating decision by the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in July 2006. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. A total service-connected disability rating was not in affect for 10 years at the time of the veteran's death and there is no indication that he was hypothetically entitled to a total rating for 10 years prior to his death. CONCLUSION OF LAW The criteria for DIC benefits pursuant to 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 (before and after January 21, 2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in January 2004 and March 2007. Those letters notified the appellant of VA's responsibilities in obtaining information to assist in completing her claim, identified her duties in obtaining information and evidence to substantiate her claim, and requested that she send in any evidence in her possession that would support her claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. The March 2007 notice provided in this case also addressed these matters. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. In its September 2005 order the Court, citing Rodriguez v. Nicholson, 19 Vet. App. 275 (2005), found the issue on appeal required re-adjudication because pertinent intervening case law had 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." The case was subsequently remanded for additional development and the issue was re-adjudicated in a May 2007 supplemental statement of the case. On January 7, 2008, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Rodriguez decision. Applying the three-part test outlined in Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005), the Federal Circuit found that the application of the amended section 3.22 did not create an unlawful retroactive effect because it did not retrospectively diminish any rights to benefits. Consequently, it was held that 38 C.F.R. § 3.22, as amended, does not have a retroactive effect and may be applied to claims for DIC benefits filed by survivors before the amendment took effect. See 511 F3d 1147 (Fed. Cir. 2008). VA law provides that a surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service connected where it is shown that the death was not the result of willful misconduct, and the veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death, (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service, or (3) was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(West 2002); 38 C.F.R. § 3.22(a) (effective January 21, 2000). The phrase "entitled to receive" is defined as a situation where, 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). In this case, the appellant's claim was received by VA in January 1999. VA records show that at the time of the veteran's death service connection was not established for any disability. An initial application for service connection compensation benefits was received in June 1998 and a claim for entitlement to service connection for esophageal cancer was denied in July 1998. There is no evidence of any earlier claim or rating determination for service connection. In his August 1998 application for VA nonservice-connected disability benefits the veteran also indicated that he had last worked in June 1998. Records show the veteran died in November 1998. The issue of entitlement to service connection for the cause of the veteran's death has been separately adjudicated and is not an issue on appeal. Based upon the evidence of record, the Board finds that a total rating was not in effect for 10 years prior to the veteran's death and there is no indication that he was hypothetically entitled to a total rating for the 10 years prior to his death under applicable VA law. He last served on active duty in 1970 and there is no evidence he was a former prisoner of war. Although the Board is sympathetic to the appellant and her claim, there is no basis in VA law to allow the benefits sought in this case. Therefore, entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 must be denied. 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 the claim. ORDER Entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318(b) is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs