Citation Nr: 0813497 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-07 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 30 percent for bronchial asthma with obstructive airway disease and pulmonary fibrosis for accrued benefits purposes. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1310 based on service connection for the cause of the veteran's death. 4. Eligibility to Dependents' Educational Assistance under 38 U.S.C.A. chapter 35. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from September 1949 to October 1968. He died in March 2001, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The issues of entitlement to an increased rating for bronchial asthma with obstructive airway disease and pulmonary fibrosis for accrued benefits purposes, entitlement to DIC based on service connection for the cause of the veteran's death, and eligibility for Dependents' Educational Assistance under 38 U.S.C.A. chapter 35 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. The veteran died in March 2001. 2. At the time of the veteran's death, his only service- connected disability was bronchial asthma with pulmonary emphysema with obstructive airway disease and pulmonary fibrosis, which had been rated as 30 percent disabling from November 1991. 3. The increased rating claim filed by the veteran in January 2001 could not have resulted in a total rating for the 10 years prior to his March 2001 death. 4. The veteran was not continuously rated totally disabled due to service-connected disability for at least 10 years immediately preceding his death, nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death. 5. There is no specific pleading of clear and unmistakable error in any prior decision. CONCLUSION OF LAW Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is not established. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. For reasons expressed immediately below, the Board finds that resolution of the issue on appeal is based on the operation of law and that the VCAA is generally not applicable. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. The Board finds that such is the case as to the issue here on appeal. Therefore, based on the Court's decision in Manning, the Board concludes that the appellant's claim is not subject to the provisions of the VCAA. VA will pay death benefits to the surviving spouse in the same manner as if the veteran's death were service connected if his death was not the result of his own willful misconduct and, at the time of death, he was receiving, or was 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, (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of the 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. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). The term "entitled to receive" means that at the time of his death, the veteran had service-connected disability rated as totally disabling, but was not receiving compensation because (1) VA was paying the compensation to his dependents, (2) VA was withholding the compensation to offset an indebtedness, (3) he had applied for compensation, but was not receiving total disability compensation due solely to clear and unmistakable error in a VA decision, (4) he had not waived retired or retirement pay in order to receive compensation, or (5) VA was withholding payments as required by law. 38 C.F.R. § 3.22(b). The Board also notes that a 2005 amendment to 38 C.F.R. § 3.22 provides an additional method for prevailing on 1318 claims, where additional service department records are received that existed at the time of a prior VA decision, but were not considered. The appellant has not alleged, and the evidence does not show, that the veteran was entitled to receive 100 percent disability compensation for the 10-year period immediately preceding his death in March 2001, but was not receiving such compensation for any of the reasons enumerated in 38 C.F.R. § 3.22(b). In this regard, at the time of the veteran's death, his only service-connected disability was bronchial asthma with pulmonary emphysema with obstructive airway disease and pulmonary fibrosis, which had been rated as 30 percent disabling from November 1991. Although the veteran had filed an increased rating claim in January 2001, and it remained pending at the time of his death in March 2001, the claim could not have resulted in a total rating for the 10 years prior to his death. That is because the effective date of the award of an increased rating can be no earlier than one year prior to the receipt of the claim. See 38 C.F.R. § 3.400(o)(2). It follows that the veteran was also not rated as totally disabled continuously since his release from active duty and for at least five years immediately preceding his death. Also, there is no evidence suggesting that the veteran was a prisoner of war at any time. As such, there is no possibility that the veteran could have met the requirements of a total disability rating of the required duration at the time of his death. In addition, the Board observes there has been no specific pleading by the appellant of clear and unmistakable error in any prior decision. Cole v. West, 13 Vet. App. 268 (1999) (specifying pleading requirements in claim of clear and unmistakable error in a prior decision for purposes of DIC claim under 38 U.S.C.A. § 1318). Neither the appellant nor her representative has identified any other permissible basis for granting this claim. A hypothetical theory of entitlement is not applicable because the appellant's claim was filed after January 21, 2000. The facts of this case are not in dispute and the law is dispositive. Accordingly, the claim will be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied. REMAND The remaining claims on appeal are entitlement to a rating in excess of 30 percent for bronchial asthma with obstructive airway disease and pulmonary fibrosis for accrued benefits purposes, entitlement to DIC based on service connection for the cause of the veteran's death, and eligibility for Dependents' Educational Assistance under the provisions of 38 U.S.C.A. chapter 35. As to the accrued benefits claim, the decision it to be made based on evidence in the file at the date of the veteran's death. See 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2007). In his increased rating claim, received at the RO in January 2001, the veteran referred to VA lung surgery in 1998 and said all his medical records were located at the VA Medical Center (VAMC) in Portland, Oregon. The record includes the discharge summary for VA hospitalization in July 1998, and in June 2001, the appellant submitted VA Discharge Instructions dated in January 2001. The form indicates that the veteran had a follow-up appointment scheduled for February 2001, and a handwritten note at the top of the page indicates that the veteran was admitted via the emergency room on January 19, 2001, and was discharged on January 22, 2001. There is no indication that VA medical records other than the July 1998 hospital summary have been obtained. Although 38 U.S.C.A. § 5121 and 38 C.F.R. § 1000 specify that an accrued benefits claim must be based on evidence of record at the date of the veteran's death, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Because of this, action should be taken to obtain and associate with the claims file any VA medical records that have not been obtained previously. As to the cause of death claim, the Board notes that in addition to reference to VA medical records the record indicates that the veteran received medical care from private health care providers prior to his death. The appellant should be requested to identify and provide release authorizations, and action should be taken to attempt to obtain those records. The appellant contends that the veteran's service-connected lung disease significantly contributed to the veteran's death and she implicitly contends that it hastened his death. The veteran's death certificate lists adenocarcinoma of the lung with metastasis as the immediate cause of the veteran's death and lists chronic lung disease as a significant condition contributing to his death but not resulting in his lung cancer. The RO based its denial of the cause of death claim on a VA medical opinion dated in December 2003 in which it was stated that although the veteran had undergone a right lower and middle lobectomy in 1998 for adenocarcinoma of the lung, it was not directly related to his service-connected asthma or emphysema. This opinion does not address whether the veteran's service-connected bronchial asthma with pulmonary emphysema with obstructive airway disease and pulmonary fibrosis contributed substantially or materially to the veteran's death or whether it had a material influence in accelerating his death. Medical opinions regarding these matters would facilitate the Board's decision, and the Board will request that such be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she identify the names, addresses, and approximate dates of treatment for all health care providers (VA and non-VA) from which the veteran received treatment or evaluation for any lung disease from July 1998 to the date of his death in March 2001. With authorization from the appellant, obtain and associate with the claims file medical records identified by the appellant. In any event, obtain and associate with the claims file all VA medical records for the veteran dated from July 1998 to the date of his death in March 2001. 2. Then, request that a VA physician review the claims file, including all medical records dated from July 1998 to the date of the veteran's death in March 2001 as well as the veteran's death certificate, and provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the veteran's service-connected bronchial asthma with pulmonary emphysema with obstructive airway disease and pulmonary fibrosis contributed substantially or materially to the veteran's death from adenocarcinoma of the lung with metastasis. In addition, the physician should be requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the veteran's service-connected bronchial asthma with pulmonary emphysema with obstructive airway disease and pulmonary fibrosis had a material influence in accelerating the veteran's death. The claims file must be provided to the physician for review of pertinent documents. 3. Then, after completion of any additional development indicated by the state of the record, readjudicate entitlement to a rating in excess of 30 percent for bronchial asthma with obstructive airway disease and pulmonary fibrosis for accrued benefits purposes, entitlement to DIC based on service connection for the cause of the veteran's death, and eligibility for Dependents' Educational Assistance under the provisions of 38 U.S.C.A chapter 35. If any benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs