Citation Nr: 1031885 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 07-32 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a higher rate of Dependency and Indemnity Compensation benefit payments. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. M. Macierowski, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to June 1958, and from June 1958 to May 1974. He died in March 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). The appellant testified before the undersigned Veterans Law Judge via videoconference in June 2010. The transcript of that hearing has been associated with the claims file. In her October 2007 VA Form 9, Appeal to the Board of Veterans' Appeals, the appellant asserted that the Veteran's medical treatment, during the three weeks prior to his March 2006 death, constituted negligent care and/or treatment by VA personnel at a VA facility. The Board finds that this constitutes a claim for benefits under the provisions of 38 U.S.C.A. § 1151, and refers that issue ot the RO for the appropriate development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in March 2006; service connection for the cause of the Veteran's death was granted in an April 2006 rating decision. 2. The appellant was awarded Dependency and Indemnity Compensation (DIC) benefits at the full dollar rate according to the monthly entitlement amounts specified by statute with a progressive calculation according to statute beginning on April 1, 2006. CONCLUSION OF LAW There is no legal basis on which to assign a higher rate of DIC benefit payments. 38 U.S.C.A. § 1311 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.3, 3.4, 3.5 (2009). 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), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), 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. However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). In addition, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant 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 and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim. VAOPGCPREC 5-2004 (June 23, 2004). The Board notes that the essential facts in this case have been fully developed and are not in dispute. As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Thus, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Certain VA death benefits, including DIC, are payable to a veteran's surviving spouse. 38 U.S.C.A. §§ 1310, 1541; 38 C.F.R. § 3.5. DIC is paid to a surviving spouse at a rate specified by law. 38 U.S.C.A. § 1311(a)(1); 38 C.F.R. § 3.5. The appellant was initially awarded $1,033.00.00 monthly in DIC benefits effective April 1, 2006. Her benefits have since been increased to $1,091.00.00 effective December 1, 2007. 38 U.S.C.A. § 1311(a)(1). Therefore, the issue before the Board is whether there is a basis on which to award an increased amount of DIC benefits. The appellant claims that she is entitled to a higher rate of DIC benefits granted effective April 1, 2006. The basis of her claim, to include as described in detail in her July 2006 notice of disagreement and at her June 2010 Board hearing, is that the Veteran should have been rated as 100 percent combined disabling at the time of his death due to the severity of one or more of his service-connected disorders. As noted above, the amount of DIC paid to a surviving spouse is determined by statute. See 38 U.S.C.A. § 1311. The basic rate shall be increased by a fixed amount in the case of the death of a veteran who at the time of death was in receipt of or was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. Id. In this case, the Veteran was not, at the time of his death, in receipt of or entitled to receive compensation for a service- connected disability that was rated totally disabling for a continuous period of at least eight years before his death. At the time of the Veteran's death, an 80 percent combined disability evaluation had been in effect from November 2001, less than six years prior to his death. None of his service-connected disorders were rated as totally disabling. As such, the appellant is not eligible to receive increased DIC benefits under 38 U.S.C.A. § 1311(a)(2). Although a surviving spouse may not be entitled to an increased amount of DIC under the basic rate, additional compensation may be payable to the surviving spouse for each dependent child of the Veteran under the age of eighteen, in addition to the basic DIC rate. However, there are no dependents of the Veteran who are under the age of eighteen to warrant additional compensation under 38 U.S.C.A. § 1311(b). Indeed, in the June 2006 notice letter regarding her initial DIC payments, the RO notified the appellant that she was being paid as a surviving spouse with no dependents, and the appellant has not indicated otherwise. Therefore, the appellant is not entitled to a higher rate based on dependent children. Additional compensation may also be paid if it is medically shown that the surviving spouse is in need of regular aid and attendance and/or by reason of being housebound. This additional compensation for aid and attendance or by reason of being housebound is referred to as special monthly DIC. 38 U.S.C.A. § 1311(c); 38 C.F.R. § 3.351(a)(3) & (4). The monthly rate of DIC payable to a surviving spouse who does not qualify for increased compensation based on need for regular aid and attendance shall be increased if the surviving spouse is permanently housebound by reason of disability. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to her home (ward or clinical area, if institutionalized) or immediate premises by reason of disability or disabilities which are reasonably certain to remain throughout the surviving spouse's lifetime. 38 U.S.C.A. § 1311(d); 38 C.F.R. § 3.351(e). The rate of pay for aid and attendance status is higher than the rate of pay for housebound status, and neither the statute nor the regulations provide for the assignment of both payments at the same time. See 38 C.F.R. § 1311(d). However, the record does not reflect, and she has not alleged, that she is in need of regular aid and attendance or on housebound status. Therefore, the appellant is not entitled to a higher DIC rate based on such a need. The appellant has argued in the July 2006 notice of disagreement that she was informed by a VA employee that she would receive at least $1,200.00 per month in DIC benefits. Unfortunately, even if this occurred, there is no equitable relief available. Being a victim of misinformation cannot estop the government from denying a benefit. See generally McCay v. Brown, 106 F.3d 1577, 1582 (Fed. Cir. 1997) and Elsevier v. Derwinski, 1 Vet. App. 150, 153-55 (1991), interpreting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), see also Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998); Walker v. Brown, 8 Vet. App. 356 (1995); Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). She has also argued that the Veteran's service-connected diabetes mellitus, among other disorders, was severe enough in the three weeks prior to his death as to warrant a 100 percent evaluation. However, DIC claims filed on or after January 21, 2000 are not subject to hypothetical entitlement analysis. See Rodriguez v. Nicholson, 19 Vet. App. 275 (2005) In sum, the Board finds that the appellant is receiving the maximum DIC benefit allowed by statute. See 38 U.S.C.A. § 1311. The appellant was initially awarded $1,033.00 per month in DIC payments at the time DIC at the full dollar rate was granted in April 2006. This was the maximum benefit allowed under the law and the monthly rate which was in effect at the time. Her benefits have since been increased to $1,091.00 effective December 1, 2007. This is the rate specified in 38 U.S.C.A. § 1311(a)(1). The appellant does not meet any of the requirements which would allow for an increase in her benefits. There is no basis in the law for granting the appellant's claim to direct a higher rate of payment. The appellant is not entitled to a higher rate of DIC, and as a matter of law her claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The doctrine of reasonable doubt is not for application here as this issue is resolved as a question of law with no dispute or controversy regarding the factual record. 38 U.S.C.A. § 5107(b) (West 2002). ORDER The appeal for a higher rate of DIC benefit payments is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs