Citation Nr: 0814140 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-33 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from May 1944 to February 1946. The veteran died in July 2003, and the veteran's widow is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied DIC benefits. In March 2007, the Board remanded the claim for due process concerns. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran died in July 2003. The death certificate showed that the immediate cause of death was multisystem failure due to or as a consequence of diabetes and sepsis. 3. At the time of the veteran's death, he was not service- connected for any disability. 4. The veteran was not evaluated as being totally disabled from service-connected disability for 10 continuous years immediately preceding death, rated as being totally disabled continuously after his discharge from service in February 1946 for a period of not less than 5 years immediately preceding death, or a former prisoner of war who died after September 30, 1999. CONCLUSION OF LAW The claim for DIC benefits pursuant to 38 U.S.C.A. § 1318 lacks legal merit and must be denied as a matter of law. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision The veteran separated from service in February 1946 and died in July 2003 as a result of multisystem failure due to or as a consequence of diabetes and sepsis. In September 2003, the appellant filed a claim seeking entitlement to DIC benefits under 38 U.S.C.A. § 1318. VA law provides that even if the veteran's death was not due to a service-related condition, dependency and indemnity compensation benefits are payable under certain specific circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service- connected disability which had been totally disabling for a specified period of time: (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 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. 38 U.S.C.A. § 1318. The implementing regulation is at 38 C.F.R. § 3.22 (2007) (as previously amended by 65 Fed. Reg. 3,388 (Jan. 21, 2000) (the effective date of the VA regulation prohibiting "hypothetical entitlement"). Although VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under either 38 U.S.C.A. § 1311(a)(2) or 38 U.S.C.A. § 1318, in Rodriguez v. Nicholson, 19 Vet. App. 275 (2005), the Court determined that the theory of hypothetical entitlement should be applied on a limited basis; i.e. only to claims pending on the date of the change of 38 C.F.R. § 3.22, January 21, 2000. In this case, there was no claim pending for DIC benefits claimed under the provisions of 38 U.S.C.A. § 1318 on January 21, 2000. Thus, hypothetical entitlement is not for application. Evaluating this claim under applicable law, the Board notes that at the time of the veteran's death, he was not service connected for any disability. Accordingly, a service- connected disorder was not rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death 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. Additionally, the veteran was not a former prisoner of war who died after September 30, 1999. Further, the veteran was not "entitled to receive" compensation for service-connected disability rated totally disabling for a continuous period of at least 10 years immediately preceding his death within the meaning of the law because none of the circumstances specified in 38 C.F.R. § 3.22(b) under which a veteran might have been entitled to receive compensation but was not in actual receipt of compensation is shown or alleged to be applicable in the present case. Consequently, dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1318 are not warranted. There has been no allegation of clear and unmistakable error in any prior decision, nor has the appellant identified any other basis for granting this claim. 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. See Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. As explained above, in the present case, there is no legal basis upon which the benefits may be awarded and the appellant's claim must, regrettably, be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). ORDER Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs