Citation Nr: 1007162 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-02 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to death indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1151. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from March 1951 to March 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran died in December 1993; the death certificate lists the immediate cause of his death as ischemic heart disease and the underlying cause of death as arteriosclerotic cardiovascular disease. 2. The appellant is a "surviving spouse." 3. Although the Veteran did fall while in a VA medical facility, the fall did not contribute to the Veteran's death. 4. The claim for accrued benefits was not filed within one year of the Veteran's death; in addition, at the time of the Veteran's death, there were no due but unpaid benefits to which the Veteran was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.358, 3.800 (2009). 2. The criteria for accrued benefits have not been met. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2009); 38 C.F.R. § 3.1000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151, complete notice was sent in January and April 2006 and the claim was readjudicated in a September 2006 statement of the case. Mayfield, 444 F.3d at 1333. With respect to the claim of entitlement to accrued benefits, the RO provided the appellant pre-adjudication notice by letter dated in December 2006. Additionally, VA has assisted the appellant in obtaining evidence, obtained a medical opinion as to whether the Veteran's death was related to VA medical care, medical or surgical treatment, or examination, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. DIC The Veteran died on December [redacted], 1993, as a result of ischemic heart disease with an underlying cause of arteriosclerotic cardiovascular disease. Cerebral vascular disease was noted to be another significant condition contributing to the Veteran's death but not resulting in the underlying cause. See December 1993 death certificate. The appellant contends that the Veteran's death resulted from injuries sustained by the Veteran after he slipped on a wet floor while he was admitted to an alcohol rehabilitation program at a VA Medical Center (VAMC) in 1987. Specifically, she contends that the Veteran's fall resulted in head/brain injury, which resulted in a stroke which resulted in his death. She is seeking DIC benefits pursuant to 38 U.S.C.A. § 1151. The Board notes that the Veteran was previously denied DIC benefits under 38 U.S.C.A. § 1310. See January and July 1994 decisions. Review of the file does not suggest that the appellant intended to reopen those claims. As such, the decision below will be limited to entitlement to DIC benefits under 38 U.S.C.A. § 1151. VA law provides for death indemnity compensation (DIC) benefits to a veteran's surviving spouse because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5. To be considered a "surviving spouse" of a veteran, the applicant must have been the veteran's spouse at the time of his death and have lived continuously with him from the date of their marriage to the date of his death, except where there was a separation due to the misconduct of the veteran or procured by the veteran without fault of the spouse. 38 C.F.R. § 3.50(b). The appellant and the Veteran were married in February 1967. See wedding certificate. The evidence does not suggest that the Veteran and appellant were divorced prior to his death. The evidence also does not suggest that the Veteran and the appellant lived continuously with each other from the date of their marriage until the date of the Veteran's death, however; rather, the evidence clearly documents that the Veteran and appellant lived apart for more than 13 years prior to the Veteran's death. See, e.g., February 1987 VA inpatient record (Veteran reported had lived apart from wife for 15 years); Mach 1990 Veteran's statement (lived apart for more than 10 years); March 1990 appellant's statement (lived apart for more than 18 years). Thus, there is no "continuous cohabitation" from the date of marriage, in the literal meaning of the term. The regulations provide an exception, however, for certain circumstances in which there has been a separation. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. Additionally, if the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that did not show intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53(a). A two-part test has been identified to determine whether a spouse can be deemed to have continuously cohabited with a veteran even if a separation has occurred. First, the spouse must be free of fault in the initial separation. Second, the separation must have been procured by the veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Gregory v. Brown, 5 Vet. App. 108 (1993). The record includes the testimony from the appellant that she and the Veteran separated because of his mental condition and statements from the appellant that she interacted with the Veteran nearly every day. See January 1993 and April 2001 hearing transcripts. See also January 1992 pension claim. The record does not contain any evidence suggesting that the separation was due to misconduct or fault by the appellant. Thus, for the purposes of this decision, the Board finds the continuity of cohabitation was not broken and the appellant is a "surviving spouse." Once accepted as a "surviving spouse," an appellant can receive benefits pursuant to 38 U.S.C.A. § 1151, if the evidence shows that the death was not the result of the veteran's willful misconduct, the death was caused by hospital care or medical treatment furnished by the VA, and the death was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or by an event not reasonably foreseeable. See 38 U.S.C.A. § 1151. To establish causation, the evidence must demonstrate that the actual hospital care, medical or surgical treatment, or examination provided by VA caused the claimed disability. The "mere fact that a [Veteran] is harmed by an event that occurs coincidentally with VA hospital care, medical or surgical treatment, or an examination is not sufficient to establish causation-and, therefore, to receive benefits-under 38 U.S.C.A. § 1151." If, and only if, a claimant is able to make this showing, the analysis advances to the question of proximate cause. See Mangham v. Shinseki, 23 Vet. App. 284, 287 (2009). After reviewing all relevant evidence, the Board finds that the evidence does not indicate that DIC benefits are warranted under 38 U.S.C.A. § 1151 as the evidence does not show that actual hospital care, medical or surgical treatment, or examination resulted in the claimed disability. The record documents that the Veteran slipped on a wet floor while an inpatient at a VA rehabilitation clinic. See May 1987 VA treatment record. Even if the fall were "caused" by VA hospital care, the probative evidence does not suggest that the fall contributed to the Veteran's death: the evidence does not contain any medical findings linking the Veteran's death to the 1987 fall, and the evidence does not otherwise suggest such a relationship. A review of treatment and examination records contemporaneous with and subsequent to the fall reveals no findings, complaints, or histories suggestive of trauma to the head or heart as a result of the fall; rather, the evidence indicates that only an elbow was injured. See May 1987 VA medical records. See also April 2008 VA medical opinion. The Board notes that the appellant contends that the Veteran sustained head injuries as a result of the fall. The appellant was not with the Veteran at the time of the fall, however, and she does not indicate that her belief is the result of any history provided by the Veteran. As such, the Board finds the appellant's contention is not competent evidence that the Veteran sustained a head injury as a result of a fall. Cf. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). Even assuming the fall resulted in head injury, however, the evidence still does not suggest that the head injury contributed to the Veteran's death. The Board notes that, subsequent to the fall, the Veteran had a cerebrovascular accident. A VA medical practitioner has opined that the cerebrovascular accident was not connected to any head injury which might have occurred in 1987, however. See April 2008 VA medical opinion. Moreover, the examiner explained that, even if the two events were connected, based on the evidence that the Veteran had recovered from the stroke by 1992 (per findings reported in a December 1992 VA examination record), it was unlikely that the stroke had any significant contribution to the Veteran's death from heart disease. In conclusion, the competent evidence does not demonstrate that the Veteran death was the result of VA hospital care, medical or surgical treatment, or examination. Thus, DIC benefits pursuant to 38 U.S.C.A. § 1151 are not available and the claim must be denied. Accrued Benefits Accrued benefits are defined as periodic monetary benefits to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due and unpaid for a period not to exceed two years. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. 38 C.F.R. § 3.1000 was amended to eliminate the two-year restriction on the payment of accrued benefits. The amendment applies only to deaths occurring on or after the date of enactment, which was December 16, 2003, however. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). In this case, the Veteran's death occurred in December 1993; thus, the appellant's claim must be considered under the version of 38 U.S.C.A. § 5121(a) previously in effect, which limited eligibility for accrued benefits to a two-year period. The application for accrued benefits must be filed within one year after the date of the veteran's death. 38 C.F.R. § 3.1000(c). The entitlement of the accrued benefits claimant is derived from the veteran's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the veteran would have received had he lived. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994); see also Zevalkink v. Brown, 102 F.3d 1236, 1242 (1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Review of the record reveals that the appellant filed a claim for DIC and accrued benefits in March 1994. The appellant (as the surviving spouse and custodian of the Veteran's surviving child) was subsequently paid all monies remaining in the Veteran's fiduciary account at the time of his death. See May 1995 letters. Several years later, the appellant submitted statements in which she reported that the Veteran had not received all monies owed to him prior to his death (and that she had not received the monies owed to the Veteran at the time of his death). See, e.g., May 1998 and August 1999 statements. See also March 1998 congressional letter. In September and December 1999, the RO informed the appellant, by letters, that all funds had been paid and that no further payments were due on the Veteran's account. The appellant then submitted additional statements in which she indicated that she disagreed with the RO's determination that no more money was due. Specifically, she contended that she was owed the money that was paid to M.B. and L.B. as custodians because the Veteran had never received money from them. See, e.g., January and July 2000 and July 2001 letters; April 2001 hearing transcript. In June 2001, the RO informed the appellant, by letters, that based on a review of the records, it could not be determined that any funds were misused by any fiduciary prior to the Veteran's death. Further, the RO informed the appellant that there was no evidence of non- receipt of any checks by the Veteran. The appellant subsequently submitted additional statements indicating her disagreement with the determination. In November 2005, the appellant filed a claim for compensation under 38 U.S.C.A. § 1151 for accrued benefits purposes. In October 2007, the RO issued a decision, denying accrued benefits. The Veteran has appealed this decision to the Board. After review of the evidence, the Board finds that accrued benefits are not warranted. Initially, the Board notes that as the currently pending claim for accrued benefits was received more than one year after the date of the Veteran's death, it is not a timely claim for accrued benefits. Furthermore, even if the claim were timely, the evidence demonstrates that the Veteran did not have any claims pending at the time of his death and that all monies in the Veteran's fiduciary account have already been paid to the appellant. In other words, there is no evidence of due but unpaid monetary benefits. The Board notes that the appellant has argued that she is owed the monies paid to M.B. and L.B. in their role as the Veteran's custodians because M.B. and L.B. did not use the money on the Veteran. Even assuming that were true, however, the Board is unable to provide any legal remedy. See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Accordingly, the claim for accrued benefits is denied due to the lack of entitlement under the law. Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER DIC benefits pursuant to 38 U.S.C.A. § 1151 are denied. Accrued benefits are denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs