Citation Nr: 0814744 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-36 408 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC), pursuant to the provisions of 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran had active service from November 1942 to October 1945. The veteran died in October 2003; the appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision issued in March 2004 in which the RO, inter alia, denied claims for service connection for the cause of the veteran's death, for accrued benefits and for DIC benefits, pursuant to the provisions of 38 U.S.C.A. § 1318. The appellant filed a notice of disagreement (NOD) in March 2004, and the RO issued a statement of the case (SOC) with regard to denial of service connection for the cause of the veteran's death and DIC benefits in August 2004. The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in October 2004. In November 2004, the RO issued a supplemental SOC (SSOC). The Board's decision on the claim for service connection for the cause of the veteran's death and the claim for DIC benefits, pursuant to the provisions of 38 U.S.C.A. § 1318, is set forth below. The matter of entitlement to accrued benefits-for which the appellant has completed the first of two actions needed to place this matter in appellant status- is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 2. The veteran's death certificate lists the immediate cause of death as multiple myeloma with bone metastases and renal failure; peripheral vascular disease was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 3. At the time of the veteran's death on October [redacted], 2003, service connection was in effect for: generalized anxiety reaction (rated as 100 percent disabling); bilateral sensorineural hearing loss (rated as 50 percent disabling); spastic colitis and diverticulosis (rated as 30 percent disabling); bilateral tinnitus (rated as 10 percent disabling); and malaria, strongyloides infestation of intestines and anklylostomiasis, and shrapnel wound scars of the left leg and right buttock (each separately rated as noncompensably disabling); the combined disability rating for his service-connected disabilities was 100 percent from April 22, 1998. 4. No multiple myeloma with bone metastases or renal and/or peripheral vascular disease was manifest until many years following the veteran's separation from service, and the most probative medical nexus opinion weighs against the claim. 5. A disability of service origin did not cause or contribute substantially or materially to cause the veteran's death. 6. The veteran, who died 57 years after his discharge from service, was not rated as totally disabled due to service- connected disabilities for 10 continuous years immediately preceding death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the veteran's death are not met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2007). 2. The claim for DIC benefits, pursuant to the provisions of 38 U.S.C.A. § 1318, is without legal merit. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.22, 20.1106 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant appellant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). Specific to a claim for DIC benefits, VA's notice requirements 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 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As regards the claim for DIC, pursuant to 38 U.S.C.A. § 1318, the appellant has been notified of the basis for the denial of this claim, and has been afforded opportunity to present evidence and/or argument with regard to that claim. Further, there is no indication that any evidence bearing on this claim is outstanding. Thus, the Board finds that all notification and development action on this claim has been accomplished. As indicated below, the DIC claim is being denied as lacking legal merit; as such, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). As regards the claim for service connection for the cause of the veteran's death, in a January 2004 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection for the cause of the veteran's death (as well as the claim for DIC, pursuant to 38 U.S.C.A. § 1318), as well as what information and evidence must be submitted by her, what information and evidence would be obtained by VA, and the need for her to advise VA of and to submit any further evidence in her possession that is relevant to the claims. After issuance of the notice and an opportunity for the appellant to respond, the claims were adjudicated in the February 2004 rating decision now on appeal. Thus, the January 2004 letter meets the VCAA's content of notice and timing of notice requirements. Although this letter does not specifically include a statement of the conditions for which the late veteran was service-connected at the time of his death, this omission did not prejudice the appellant, as it is evident that she was already aware of them. The Board notes that in a March 2004 statement in support of her NOD, the appellant submitted a private physician's statement that discussed the veteran's service-connected disabilities and their alleged effect on the veteran's health and ultimate demise. Thus, the deficiency was effectively cured by actual knowledge of the appellant. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Moreover, as indicated above, the January 2004 letter otherwise provided adequate notice of the VCAA's provisions as they pertained to DIC claims, pursuant to Hupp. In addition, although the appellant has not been provided notice regarding assignment of effective dates (in the event that either claim is granted), the Board's decision herein denies the claims for service connection for the cause of the veteran's death and for DIC benefits, pursuant to 38 U.S.C.A. § 1318. As no effective date is being, or is to be assigned, and there is therefore no possibility of prejudice to the veteran under the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service treatment records and post-service private medical records, a private physician's opinion, and a VA opinion as to the alleged relationship between the veteran's service-connected disabilities and his death. Also of record are various written statements provided by the appellant and by her representative, on her behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. Service Connection Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and cardiovascular-renal disease and/or malignant tumors become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service- connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). The veteran died on October [redacted], 2003. His death certificate lists the immediate cause of his death as multiple myeloma with bone metastases and renal failure. Peripheral vascular disease was listed as a significant condition contributing to death but not resulting in the underlying cause of death. During the veteran's lifetime, service connection was established for: generalized anxiety reaction (rated as 100 percent disabling); bilateral sensorineural hearing loss (rated as 50 percent disabling); spastic colitis and diverticulosis (rated as 30 percent disabling); bilateral tinnitus (rated as 10 percent disabling); and malaria, strongyloides infestation of intestines, anklylostomiasis, and shrapnel would scars of the left leg and right buttock (each separately rated as noncompensably disabling). The combined disability rating for his service-connected disabilities was 100 percent, effective April 22, 1998. The appellant asserts that the effects of the veteran's multiple service-connected disabilities on the veteran's health led to his ultimate demise. However, considering the record in light of the above-noted legal authority, the Board finds that service connection for the cause of the veteran's death is not warranted. Initially, the Board notes that the veteran's service personnel records reflect that he served in the Pacific Theater of Operations as a medical non-commissioned officer (NCO) in the United States Army during World War II. He was awarded a Purple Heart with 2 Bronze Stars, an Asiatic- Pacific Service Medal, a Bronze Star Medal, and a Philippines Liberation Ribbon. However, his service personnel records do not establish that he was ever captured and incarcerated by enemy forces as a prisoner of war (POW). Further, the veteran's service treatment records are completely negative for findings or diagnoses of any myeloma, bone metastases, renal and/or peripheral vascular disease. Nor is there any medical evidence that any of the diseases listed on his death certificate were manifested to any degree during the first post-service year following his discharge from active duty in October 1945. Hence, the conditions resulting in the veteran's death were not shown in or within one year after service discharge. Significantly, the claims file also includes medical opinions from a private physician and from a VA physician that address the relationship between the veteran's service-connected disabilities and his death. However, the Board finds that the most persuasive medical opinion on the question of whether there exists a medical relationship between the veteran's service-connected disabilities and his death weighs against the claim. The only medical evidence that tends to support the appellant's claim is a March 2004 statement from one of the veteran's treating physicians, T. A. W., M.D., who noted that the veteran died due to multi-organ failure that was contributed to by multi-system failure. This physician stated that the ultimate cause of death was a weakened condition brought on by persistent and chronic general anxiety reaction that was exacerbated by profound sensorineural hearing loss. He added that the veteran "suffered from chronic spastic colitis and diverticulosis which resulted in persistent [abdominal] pain. This contributed to malnutrition, which ultimately decrease[d] his ability to tolerate or respond to many therapies for multiple management." The veteran's lack of mobility, which resulted directly from his left leg and buttocks shrapnel wounds as well as generalized ataxia due to sensorineural hearing loss and tinnitus, further complicated his last 6 months of life. Dr. T. A. W. opined that, ultimately, the veteran's resultant immobility and deconditioning resulted in multi-organ system failure. At the time of death in the hospice, the veteran was battling multiple myeloma and "the course of management and treatment of this problem was however compromised by all of the above service-connected major medical problems." However, that statement is not persuasive. Dr. T. A. W. did not indicate that the claims file or any pertinent medical records were reviewed and no rationale was provided for this opinion. Here, Dr. T. A. W.'s opinion is not medically and factually supported. In fact, the physician's opinion appears to be based solely on a desire to help the veteran's widow, the appellant. The Board notes that as a medical opinion can be no better than the facts alleged by the appellant, an opinion based on an inaccurate (or, unsubstantiated) factual premise has limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal, 5 Vet. App. at 461. See also Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the record shows that the veteran started treatment with the New Hanover Medical Group, PA, of which Dr. T. A. W. is one of the physicians, in March 2001 after relocating from Arizona. At that time and subsequently, the private medical records reflect that the veteran's primary medical problem was his multiple myeloma with renal insufficiency for which he was receiving chemotherapy. A July 2002 progress note reveals that an arteriogram did not show an expected blockage in the veteran's lower extremity. Dr. T. A. W. began treating the veteran in April 2003, at that time, he indicated that the disease process of the veteran's multiple myeloma had worsened and that the veteran was having a lot of bone pain; that MireLax was working well for the veteran's stomach problems; that the veteran had a lot of back pain; that the veteran's depression had improved with medication; and that his anemia and chronic renal insufficiency were likely due to the veteran's multiple myeloma. A May 2003 bone scan revealed chronic metastatic malignancy in the bones. In August 2003, the veteran was referred for a left lower extremity vascularization. Accordingly, Dr. T. A. W.'s opinion is not accorded any great probative weight. The Board also points out that the fact that this private physician may have treated the veteran on a regular basis- without more-does not add significantly to the probative value of the opinion. The United States Court of Appeals for Veterans Claims (Court) has expressly declined to adopt a "treating physician rule" which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See, e.g., Winsett v. West 11 Vet. App. 420 (1998), citing Guerrieri, supra. By contrast, the Board finds probative the medical opinion of a VA physician. Following a review of the veteran's claims file and death certificate signed by a hospice physician, in a June 2004 VA opinion, the VA physician noted that no autopsy was performed. His review showed that the veteran was evaluated for a lesion of the back in 1995 and was found to have a plasmacytoma without any evidence of multiple myeloma. Shortly, thereafter, however, the veteran was diagnosed with multiple myeloma for which treatment was begun in 1996. At that time, the veteran was also noted to have degenerative joint and disc disease of the lumbosacral spine with spinal stenosis as well as some peripheral vascular disease. Unfortunately, in spite of therapy, the veteran developed extensive metastatic disease to other more distal parts of his body, which were also treated. During the next several years, the veteran suffered a great decline in his health attributed to the multiple myeloma and the continuing metastatic disease. The VA physician also noted that the veteran had had his left kidney removed in 1994, due to a nephroma, and this also contributed to his chronic renal failure. The veteran expired after a long downhill course in October 2003. This physician opined that the veteran was demonstrated to be a robust individual up until the time that the multiple myeloma was discovered in 1996. This was in spite of the fact that the veteran had had a carcinomous kidney removed in the 1990s. In support of his opinion, the VA physician noted that the veteran's demise was well documented by his physicians and attributed by them to his multiple myeloma. He indicated that he could not find any evidence to support the contention that the veteran's service-connected disabilities caused or in any way contributed to his demise or contributed to the inability to treat his multiple myeloma. The Board finds that the June 2004 opinion is the most persuasive medical opinion that specifically addresses the question of whether a disability of service origin caused or contributed substantially or materially to his death. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri, 4 Vet. App. at 470-71 (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Clearly, this physician reached his conclusions only after a review of the extensive service and post-service records, and evaluation of the relative probative value of the clinical evidence. Thus, the Board finds that this medical opinion- which weighs against the claim-is entitled to more weight. See Hayes, 5 Vet. App. at 69-70; .see also Guerrieri, 4 Vet. App. at 470-471. In addition to the medical evidence, the Board has considered the appellant's own statements, as well as her representative's assertions, advanced on her behalf, that the veteran's death is related to his service-connected disabilities. However, none of this evidence provides a basis for allowance of the claim. As laypersons without the appropriate medical training and expertise, neither the appellant nor her representative is competent to provide a probative opinion on a medical matter, such as the medical relationship, if any, between a specific disability and the veteran's death. See Bostain v. West, 11 Vet. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. As indicated above, in this case, the Board finds the opinion of the VA physician dispositive of the medical nexus question. As the physician explained in detail the reasons for his conclusions, which were based on consideration of the record (for which he provided an accurate recitation of the medical evidence in the claims file), the Board finds that this opinion constitutes competent and persuasive evidence on the matter upon which the claim turns. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Under these circumstances, the Board finds that the claim for service connection for the cause of the veteran's death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. DIC Benefits DIC benefits may be awarded to a surviving spouse upon the service-connected death of a veteran. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2007); 38 C.F.R. § 3.5(a) (2007). If the veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Pursuant to 38 U.S.C.A. § 1318(a) (West 2002 & Supp. 2007), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service- connected. A "deceased veteran" for the purposes of this provision is a veteran who died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years after the veteran's separation from active service. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (2007). A "deceased veteran" also includes a former prisoner of war (POW) who died after September 30, 1999 with a service-connected disability rated totally disabling for not less than one year immediately preceding death. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22. Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2007). As noted above, the combined disability rating for the veteran's service-connected disabilities was 100 percent from April 22, 1998. Thus, the veteran was considered totally disabled due to service-connected disability at the time of his death. However, the April 22, 1998 effective date for the award of a 100 percent rating for the veteran's generalized anxiety reaction does not meet the 10-year rating requirement preceding the veteran's death in October 2003. During the veteran's lifetime, he did not challenge the assigned effective date for the 100 percent rating, which was awarded in March 1999. Moreover, in this case, the appellant has not claimed entitlement to DIC, under the provisions of 38 U.S.C.A. § 1318, based on the submission of new and material evidence to reopen a previously final VA decision, or argued that, but for the receipt of VA or military retirement pay, the veteran would have been entitled at the time of his death to receive compensation for a service-connected disability that was continuously rated totally disabling by schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by schedular or unemployability rating from the date of the veteran's discharge from service. The Board also notes that neither the appellant nor her representative has raised a claim of clear and unmistakable error (CUE) in a final rating decision, pursuant to 38 C.F.R. § 3.105(a) (2007). See Fugo v. Brown, 6 Vet. App. 40 (1993) and Damrel v. Brown, 6 Vet. App. 242 (1994) (emphasizing the pleading requirements for raising, and burden of proof for establishing, a CUE claim). The Board also notes that neither the appellant nor her representative has argued that the veteran was unemployable due to service-connected disability prior to the April 22, 1998 effective date of the 100 percent rating for generalized anxiety reaction. In any event, the Board points that any such "hypothetical entitlement" would not provide a basis for the benefits sought under the governing legal authority. In January 2000, VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time specified in 38 U.S.C.A. § 1318, or would have established such a right but for CUE in the adjudication of a claim or claims. See 65 Fed. Reg. 3,388 (Jan, 21, 2000). The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility. On April 5, 2002, VA also amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations under 38 U.S.C.A. § 1311(a) on the question of whether a deceased veteran had been totally disabled for 8 years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit. See 67 Fed. Reg. 16,309-16,317 (April 5, 2002). Subsequently, the Court held that "hypothetical entitlement" to DIC benefits under 38 U.S.C.A. § 1318 is allowed for claims filed prior to January 21, 2000, that is, the date of the VA regulation prohibiting "hypothetical entitlement." Rodriguez v. Nicholson, 19 Vet. App. 275 (2005). In Rodriguez v. Peake, 511 F.3d 1147 (2008), the United States Court of Appeals for the Federal Circuit held that application of the amended regulations barring use of hypothetical entitlement theory for DIC claims did not have impermissible retroactive effect. In this case, the veteran died in October 2003 and appellant's claim was filed in January 2004. As such, these events occurred after VA's January 2000 amendment of 38 C.F.R. § 3.22-the implementing regulation for 38 U.S.C.A. § 1318-to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for CUE in the adjudication of a claim or claims. Thus, there is nothing to change the fact that the veteran, who died 57 years after his discharge from service (rendering inapplicable the 5-year provision) had no service-connected disability rated as totally disabling for at least 10 years prior to his death. Rather, his total rating was in effect from April 22, 1998 until his death in October 2003, a total of five years, 6 months, and 5 days. The evidence also does not reflect that the veteran was a POW. For all the foregoing reasons, the Board must conclude that the veteran was not a "deceased veteran" as defined in 38 U.S.C.A. § 1318(b), and the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318(a). Hence, the claim on appeal must be denied. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the veteran's death is denied. DIC, pursuant to the provisions of 38 U.S.C.A. § 1318, is denied. REMAND As indicated above, in a March 3, 2004 letter, the RO notified the appellant of the denial of service connection for the cause of the veteran's death, for accrued benefits and for DIC benefits, pursuant to the provisions of 38 U.S.C.A. § 1318. In her March 2005 NOD, the appellant disagreed with the adjudicative determination made by the RO. As such, in addition to the issues noted above, the Board finds that the NOD also encompasses the matter of her entitlement to accrued benefits. By filing an NOD, the appellant initiated appellate review of all three issues. The next step in the appellate process is for the RO to issue to the appellant an SOC. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, the August 2004 SOC addressed only the issues of denial of service connection for the cause of the veteran's death and of DIC benefits. Consequently, the matter of the appellant's entitlement to accrued benefits must be remanded to the RO for the issuance of a SOC. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). [Parenthetically, the Board notes that the March 2004 letter also notified the appellant of the denial of death pension benefits because her income was too high. However, following the appellant's submission of unreimbursed medical expenses, the RO continued denial of the death pension claim in a March 2005 administrative decision. The fact that the appellant thereafter took no further action suggests an intention not to appeal the denial of those benefit; hence, no SOC on this matter is needed.]. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: The RO should issue to the appellant and her representative an SOC addressing the appellant's entitlement to accrued benefits. Along with the SOC, the RO must furnish to the appellant a VA Form 9 (Appeal to Board of Veterans' Appeals), and afford her the applicable time period for perfecting an appeal as to this issue. The appellant is hereby reminded that appellate consideration of the matter identified above (entitlement to accrued benefits) may be obtained only if a timely appeal is perfected. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs