Citation Nr: 0813971 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 03-02 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 2. Entitlement to Dependents' Educational Assistance (DEA) under Title 38, United States Code, Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran had active military service from July 1963 to August 1966. He died in November 2001 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied claims for entitlement to DIC under the provisions of 38 U.S.C.A. § 1310; entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, and entitlement to DEA under Title 38, United States Code, Chapter 35. In November 2003, the appellant testified at a travel Board hearing held at the RO in New Orleans, Louisiana before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously before the Board in August 2004 at which time the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1310 was denied and the aforementioned claims on appeal were remanded. In that remand, the Board also observed that the appellant had filed a claim of entitlement to DIC benefits under 38 U.S.C.A. § 1151 which was denied in a June 2003 rating action, with which the appellant had filed a Notice of Disagreement (NOD) in November 2003. Subsequently, a Statement of the Case (SOC) was issued in August 2005 and the appellant did not perfect an appeal as to that matter. Accordingly, the claim for DIC benefits under the provisions of 38 U.S.C.A. § 1151 is not before the Board for appellate consideration. Similarly, the RO denied a claim for death pension benefits in May 2006, following which a NOD was received in July 2006. An SOC was issued in February 2008 and the appellant has not perfected an appeal as to that matter to this point. Accordingly, the claim for death pension benefits is not before the Board for appellate consideration. Finally, in an August 2005 rating action, the RO addressed and denied several accrued benefits claims. As no NOD was filed as to any of the claims addressed in that decision, none of those claims are before the Board for appellate consideration. FINDINGS OF FACT 1. The veteran was separated from active service in August 1966. 2. The veteran's death certificate showed he died in November 2001 of an immediate cause of death of end stage lymphoma. 3. At the time of the veteran's death, service connection was in effect for generalized anxiety disorder with physiological response affecting the gastrointestinal tract, evaluated as 10 percent disabling from February 22, 1994, and 50 percent disabling from January 11, 2000, forward; and for prostatitis, evaluated as 20 percent disabling from February 22, 1994. The combined evaluation was 20 percent from February 22, 1994, and 60 percent from January 11, 2000. 4. The appellant filed claims for DIC under to the provisions of 38 U.S.C.A. §§ 1310 and 1318 and for accrued benefits and Chapter 35 education benefits in December 2001. 5. At the time of the veteran's death, increased rating claims for anxiety disorder and protatitis were pending as were service connection claims for hiatal hernia and diabetes mellitus secondary to anxiety disorder. All of the aforementioned accrued benefits claims were denied in an August 2005 rating decision which was not appealed and has since become a final decision. 6. The veteran was not continuously rated totally disabled due to service-connected disability for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least 5 years immediately preceding his death; nor would he have been in receipt of such compensation in either case, but for clear and unmistakable error in a prior decision, which has not been established here. 7. The veteran was not a former prisoner of war (POW). 8. The appellant is not the surviving spouse of a veteran who died of a service-connected disability or who had a total and permanent disability evaluation resulting from service- connected disability. CONCLUSIONS OF LAW 1. 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). 2. Eligibility for DEA under Chapter 35 of the United States Code has not been established. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With respect to the appellant's claims of entitlement to DIC under to the provisions of 38 U.S.C.A. § 1318 and for Chapter 35 education benefits, the Board has determined that there is no legal entitlement to the claimed benefits as a matter of law. The notice provisions and duty to assist provisions are not applicable to a claim, where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004 (June 23, 2004). As there is no dispute as to the underlying facts of this case, and as the Board has denied the claims as a matter of law, the notice and duty to assist provisions are inapplicable. See e.g., Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001). Given the foregoing, there is no issue as to whether VA has complied with its duty to notify the appellant of her duties to obtain evidence, see Quartuccio v. Principi, 16 Vet. App. 183 (2002), and the Board finds that there is no reasonable possibility that any further assistance would aid the appellant in substantiating her claims on appeal. 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided). Moreover, in November 2004 VA issued the appellant a duty to assist letter addressing her pending claims on appeal and she subsequently neither identified nor presented any additional evidence for the record. Accordingly, it is not prejudicial for the Board to decide the issues of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 and for Chapter 35 education benefits without further development. Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background The veteran died in November 2001 at the age of 56. The sole cause of death listed on the death certificate was end stage lymphoma. The appellant filed claims for DIC under to the provisions of 38 U.S.C.A. §§ 1310 and 1318 and for accrued and Chapter 35 education benefits in December 2001. During the veteran's lifetime, service connection was in effect for a generalized anxiety disorder with physiological response affecting the gastrointestinal tract, evaluated as 10 percent disabling from February 22, 1994, and 50 percent disabling from January 11, 2000, forward; and for prostatitis, evaluated as 20 percent disabling from February 22, 1994. The combined evaluation was 20 percent from February 22, 1994, and 60 percent from January 11, 2000. At the time of his death, increased rating claims for anxiety disorder and prostatitis were pending as were service connection claims for hiatal hernia and diabetes mellitus secondary to anxiety disorder. All of the aforementioned accrued benefits claims were denied in an August 2005 rating decision which was not appealed and has since become a final decision. The Board notes that a service connection claim for PTSD was also filed and pending prior to the veteran's death, but he withdrew that claim in November 2000, and hence it was not adjudicated for purposes of accrued benefits. Legal Analysis A. DIC under the provisions of 38 U.S.C.A. § 1318 The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of death benefits to a deceased veteran's surviving spouse in the same manner as if the veteran's death is service-connected, even though the veteran died of nonservice-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than 5 years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C.A. § 1318. This statute is implemented by VA at 38 C.F.R. § 3.22. The Board notes that 38 C.F.R. § 3.22 was amended during the pendency of this appeal. See 70 Fed. Reg. 72220 (Dec. 2, 2005). Current VA regulations found at 38 C.F.R. § 3.22(b) define "entitled to receive" as meaning 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 period specified [ten years in this case] 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 in accordance with 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified (ten years in this case);or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified, but was not receiving compensation because of certain specified conditions. See 38 C.F.R. § 3.22(b). In essence, the only possible ways of prevailing on a claim for benefits under 38 U.S.C.A. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision that were not previously considered by VA provide a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively. During the veteran's lifetime, service connection was in effect for a generalized anxiety disorder with physiological response affecting the gastrointestinal tract, evaluated as 10 percent disabling from February 22, 1994, and 50 percent disabling from January 11, 2000, forward; and for prostatitis, evaluated as 20 percent disabling from February 22, 1994. The combined evaluation was 20 percent from February 22, 1994, and 60 percent from January 11, 2000. Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are clearly not met. It is undisputed that the veteran was not a former prisoner of war and was not continuously rated totally disabling for a period of not less than five years from the date of his discharge from active duty, which was in 1966, inasmuch as service connection was not effective for any condition until at the earliest 1994, so those parts of 38 U.S.C.A. § 1318 are clearly not applicable. In order for DIC benefits to be awarded to the appellant under the provisions of 38 U.S.C.A. § 1318, it must be established that the veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). First, the veteran plainly did not meet the 10-year period required for a total disability rating under 38 U.S.C.A. § 1318. The veteran was discharged from service in August 1966, and he died in November 2001. His only service-connected disabilities consisted of anxiety disorder and prostatitis, for which the award of service connection was initially established from February 1994 at which time a combined evaluation of 20 percent was in effect. Thereafter, an increased evaluation of 50 percent was granted for anxiety disorder effective from January 2000, and a combined evaluation of 60 percent was in effect from January 2000 until the veteran's death in November 2001. As such, the veteran was not rated totally disabling for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabling continuously since his release from active duty or for a period of not less than five years immediately preceding death. The next issue is whether either of the aforementioned duration requirements for a total rating so as to satisfy 38 U.S.C.A. § 1318 would have been met, but for clear and unmistakable error (CUE) in a decision on a claim filed during the veteran's lifetime. Specifically, previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior determination will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). It appears that the appellant believes that the veteran had filed a service connection for lymphoma and argues that service connection should have been established for this condition. In the alternative, she maintains that the veteran's lymphoma is related to asbestos exposure from Navy ships to which he was assigned. (June 2002 NOD). A review of the file does not reflect that a service connection claim was ever filed for lymphoma during the veteran's lifetime; hence there exists no final decision of record as to this matter and there can be no CUE on this basis. The Board also observes that a claim of service connection for the cause of the veteran's death based on asbestos exposure was denied in an October 2002 rating action which was not appealed and became final. Entitlement to DIC benefits under 38 U.S.C.A. § 1151 was denied in a June 2003 rating action which was not appealed. In an August 2004 decision, the Board denied entitlement to DIC under the provisions of 38 U.S.C.A. § 1310; that determination was not appealed. The appellant has not alleged with any specificity that there was CUE in any promulgated RO or Board decision. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (any claim of CUE must be pled with specificity). Finally, the Board has considered whether there were service department records in existence at the time of a prior VA decision which were not previously considered by VA and which provide a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service- connected disability rating retroactively. In this regard, the Board has identified no such records which establish that the veteran was entitled to a total service-connected disability rating for the requisite time period. Furthermore, the appellant has not identified or submitted additional service department records that had not been previously considered by VA and would warrant reopening a claim finally decided. 38 C.F.R. § 3.22(b)(2). 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). Accordingly, for the reasons discussed herein, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318. B. Dependents' Educational Assistance (DEA) under the provisions of 38 U.S.C.A. Chapter 35. The appellant has also filed a claim of entitlement to dependents' educational assistance (DEA) under the provisions of 38 U.S.C.A. Chapter 35. DEA allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. 3.807. As for the claim for DEA benefits, eligibility for such benefits in a case where the veteran has died requires that the appellant be a surviving spouse of a veteran who died of a service-connected disability or of a veteran who died while he had a total and permanent disability evaluation in effect. 38 U.S.C.A. § 3501(a)(1). The claim of entitlement to service connection for cause of the veteran's death under 38 U.S.C.A. § 1310 was previously denied by the Board in August 2004. As explained above, the appellant's claim for benefits under 38 U.S.C.A. § 1318 has also been denied. The veteran had not been assigned a total and permanent disability rating for a single service-connected disability and he died about 35 years after his discharge from service, from end stage lymphoma, which has been determined not to be due to a service-connected disease (as indicated above, service connection has not been established for the cause of the veteran's death). Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to Chapter 35 DEA, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. Eligibility for DEA benefits under Chapter 35 has not been shown; the appeal of this issue is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs