Citation Nr: 0812806 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-04 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to accrued benefits based on a claim pending at the time of the veteran's death for service connection for end stage renal disease, claimed as secondary to service- connected benign urethra stricture. 2. Entitlement to accrued benefits based on a claim pending at the time of the veteran's death for entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound. 3. Entitlement to service connection for the cause of the veteran's death. 4. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran had active service from November 1945 to December 1946. He died in August 2001. The appellant in this case is the veteran's surviving spouse. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a January 2002 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which determined that the appellant was not entitled to DIC benefits because she was not legally married to the veteran for at least one year prior to his death. Subsequently, in a November 2002 administrative decision, the RO recognized as valid the marriage between the veteran and the appellant for VA purposes. In January 2003, the RO issued a statement of the case (SOC) denying service connection for the cause of the veteran's death and entitlement to DIC benefits under 38 U.S.C.A. § 1318. Additionally, in a January 2003 rating decision, the RO denied service connection for end stage renal disease and entitlement to SMC, for the purpose of accrued benefits. The appellant filed her substantive appeal (VA Form 9) in February 2003. The Board construed this as a Notice of Disagreement with the January 2003 decisions denying service connection for end stage renal disease and entitlement to SMC, for the purpose of accrued benefits, as well as service connection for the cause of the veteran's death and entitlement to DIC benefits under 38 U.S.C.A. § 1318. In March 2006, the Board remanded the matter to the RO for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999). Pursuant to the Board's remand instructions, the RO issued a Statement of the Case in March 2007. The appellant submitted a timely substantive appeal later that month. In connection with her appeal, a hearing at the RO was held in September 2007 before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. As set forth in more detail below, a remand is required with respect to the issues of service connection for end stage renal disease and entitlement to special monthly compensation, for accrued benefits purposes. A remand is also required with respect to the claim of service connection for the veteran's death. These issues 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. FINDINGS OF FACT 1. According to the certificate of death, the veteran died in August 2001 from end stage renal disease due to diabetes mellitus. 2. At the time of his death, service connection was in effect for the following disabilities: degenerative joint disease of the lumbar spine with lumbosacral strain, 40 percent disabling; benign stricture of the urethra, 10 percent disabling; status post right femur fracture with degenerative arthritis of the right hip, 30 percent disabling; disfiguring scar of the right cheek, 10 percent disabling; status post right pelvic fracture with ankylosis of the sacroiliac joint, 10 percent disabling; and status post fracture of the right sacrum, zero percent disabling. The veteran's combined disability rating was 70 percent, effective from October 6, 1988, and he had been in receipt of a total rating based on individual unemployability due to service-connected disabilities, effective from December 2, 1999. 3. In September 2001, the appellant submitted an application for DIC benefits, including pursuant to 38 U.S.C.A. § 1318. 4. The veteran was not a prisoner of war, he was not in receipt of compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service, or for 10 or more years prior to his death, nor has the appellant alleged that he would have been in receipt of such compensation, but for clear and unmistakable error in a prior decision. CONCLUSION OF LAW The criteria for entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). In a November 2005 letter, the RO notified the appellant of the information and evidence needed to substantiate and complete her claim for DIC benefits pursuant to 38 U.S.C.A. § 1318, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also advised the appellant to identify any additional information that she felt would support her claims. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). Here, the Board notes that although the November 2005 VCAA letter was not issued prior to the initial decision on the claim, no prejudice has resulted. After issuing the letter, the RO reconsidered the claim, as evidenced by the March 2007 Supplemental Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); see also Medrano v. Nicholson, 21 Vet. App. 165 (2007) (holding that a notice error may be cured by providing compliant notice, followed by a readjudication); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board further finds that the appellant has not been prejudiced by the RO's failure to provide notice that complies with Dingess v. Nicholson, 19 Vet. App. 473 (2006). Since DIC benefits under 38 U.S.C.A. § 1318 have been denied in the decision below, any issue about implementation of an award are not at issue. Similarly, although the November 2005 letter did not contain the level of specificity outlined by the Court in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), given the evidence of record and the question at issue in this case, no prejudice has resulted. Specifically, the evidence does not show, nor does the appellant contend, that the veteran was rated totally disabled for the requisite time period to entitle her to DIC under section 1318. Moreover, the appellant has not alleged that he would have been entitled to receive a total rating for the required period but for clear and unmistakable error in a previous rating decision. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (any claim of CUE must be pled with specificity). As discussed in detail below, this case is therefore one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the VCAA is not applicable. See Manning v. Principi, 16 Vet. App. 534, 542-3 (2002) (holding that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter); see also Juarez v. Principi, 16 Vet. App. 518, 521 (2002) (per curium order) (citing Parker as "holding VCAA inapplicable to claim that RO decision contained CUE"). With respect to any duty to assist, the Board notes that the veteran's service medical records are on file and the RO obtained all post-service medical records identified by the appellant. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007). For the reasons discussed above, given the nature of the question at issue in this case, no additional development is necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). Background In pertinent part, the veteran's service medical records show that he sustained injuries in an April 1946 truck accident in Germany, including a fracture of his right femur, pelvis and sacrum. In November 1951, the veteran submitted an original application for VA compensation benefits. In a March 1952 rating decision, the RO awarded service connection for residuals of a fracture of the upper third of the right femur, right pubis, and right sacrum, and assigned an initial 10 percent rating. The RO also granted service connection for a disfiguring scar of the right cheek, and assigned an initial 10 percent rating. The veteran's combined disability rating was 20 percent, effective November 23, 1951. The veteran was notified of the RO's decision and his appellate rights in a March 1952 letter, but he did not appeal. In October 1988, the veteran submitted a claim for an increased rating for his service-connected disabilities. He also indicated that he had developed additional disabilities as a result of his in-service accident, including a bladder condition. In a May 1989 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine with lumbosacral strain and assigned an initial 40 percent rating. In addition, the RO granted service connection for benign stricture of the urethra and assigned an initial 10 percent rating. Finally, the RO assigned increased ratings for the veteran's previously-service connected disabilities as follows: status post right femoral fracture with degenerative arthritis right hip and limitation of motion, 20 percent disabling; disfiguring scar of the right cheek, 10 percent disabling; status post right pelvic fracture with ankylosis of the sacroiliac joint, 10 percent disabling; and status post fracture of the right sacrum, zero percent disabling. The veteran's combined disability rating was increased to 70 percent, effective October 6, 1988. He was notified of the RO's decision and his appellate rights in a May 1989 letter, but he did not appeal. In August 1991, the veteran submitted another claim for an increased rating for his service-connected disabilities, including a temporary total rating based on a period of hospitalization. In a September 1992 rating decision, the RO denied his claim, and confirmed and continued the ratings previously assigned. The veteran was notified of the RO's decision and his appellate rights in a September 1992 letter, but he did not appeal. In July 1999, the veteran submitted an application for a total rating based on individual unemployability due to service-connected disabilities. In an April 2000 rating decision, the RO confirmed and continued the ratings for the veteran's low back disability, pelvis fracture, and urethra stricture. The RO increased the rating assigned for the residuals of a right femur fracture from 20 to 30 percent. Finally, the RO awarded a total rating based on individual unemployability due to service- connected disabilities, effective December 2, 1999, the date of a VA orthopedic examination showing increased disability. The veteran was notified of the RO's decision and his appellate rights in an April 2000 letter, but he did not appeal. In August 2001, the veteran died. According to the certificate of death, the cause of his death was sepsis due to end stage renal disease due to diabetes mellitus. The following month, the appellant submitted an application for DIC benefits. Applicable Law Dependency and Indemnity Compensation (DIC) is awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). If the veteran's death is not due to service-connected disability, a surviving spouse may still be entitled to DIC benefits in the same manner as if the veteran's death were service-connected if the veteran was, at the time of his death, in receipt of, or entitled to receive, compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran 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. See also 38 C.F.R. § 3.22(a) (2007). "Entitled to receive" means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the requisite period but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively for the requisite period. 38 C.F.R. § 3.22(b) (2007). Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of hypothetical entitlement to benefits raised for the first time after a veteran's death. See Rodriguez v. Nicholson, 19 Vet. App. 275 (2005), aff'd No. 2006-7023 (Fed. Cir. Jan. 7, 2008). Analysis As set forth above, in order to establish entitlement to DIC benefits under 38 U.S.C.A. § 1318 is to: (1) meet the statutory duration requirements for a total disability rating at the time of the veteran's death; or (2) show that such requirements would have been met, but for clear and unmistakable error in a previous decision. In this case, however, none of the criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1318 has been met. First, the veteran plainly did not meet the durational requirement for a total disability rating in existence during his lifetime under 38 U.S.C.A. § 1318, in that he was not rated at 100 percent for at least the first five years after his discharge from service, nor was he rated totally disabled for at least the last 10 years of his life, nor was he a prisoner of war. The veteran had a combined evaluation of 70 percent effective from October 6, 1988. Effective December 2, 1999, he was awarded a total rating based on individual unemployability due to service-connected disabilities. He died in August 2001, less than two years later. Thus, the time requirement for a total disability rating under 38 U.S.C.A. § 1318 has not been met. The appellant does not argue otherwise. Similarly, the record contains no indication, nor has the appellant contended, that the veteran would have met the durational requirements for a total rating so as to satisfy 38 U.S.C.A. § 1318, but for clear and unmistakable error in a previous decision. Finally, the Board notes that there is no indication that there are additional service department records in existence which would provide a basis for reopening a claim finally decided during the veteran's lifetime. The appellant has not contended otherwise. In cases such as this, where the law and not the evidence is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, (1994). Here, the pertinent facts are not in dispute. Under the law, as the veteran was not entitled to receive 100 percent disability for the requisite period prior to his death, the appellant is not legally entitled to DIC benefits under 38 U.S.C.A. § 1318. ORDER Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. REMAND Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence she is expected to provide, as well as the information and evidence VA will seek to obtain on her behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). A review of the record in this case indicates that the appellant has never been provided with appropriate notification with respect to her claims of service connection for end stage renal disease and special monthly compensation (SMC), both for purposes of accrued benefits. Thus, a remand is necessary. With respect to the appellant's claim of service connection for the cause of the veteran's death, although the RO provided her with a VCAA notification letter in November 2005, since that time, the United States Court of Appeals for Veterans Claims (Court) provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The appellant has not yet been provided the necessary notification regarding her claim of service connection for the cause of the veteran's death. Thus, a remand is necessary. Accordingly, the case is REMANDED for the following actions: 1. The appellant and her representative should be provided with appropriate notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation as to the evidence and information required to substantiate her claims for accrued benefits and her claim of service connection for the cause of the veteran's death, to include the notice specified by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) and Hupp v. Nicholson, 21 Vet. App. 342, 352- 53 (2007). 2. After conducting any development necessary based on any response received to the VCAA letter, the RO should readjudicate the claims, considering all the evidence of record. If the disposition remains unfavorable, the RO should furnish the appellant and her representative with another SSOC and afford them an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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. 2007). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs