Citation Nr: 1123225 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 08-38 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to accrued benefits. WITNESSES AT HEARING ON APPEAL Appellant and her son. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to September 1969. He died in March 2007. The appellant is seeking entitlement to accrued benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. In June 2008, the appellant and her son testified before a Decision Review Officer (DRO) at a hearing held at the local RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in March 2007. 2. The appellant filed a claim seeking entitlement to dependency and indemnity compensation (DIC) benefits in June 2007, within the year following the Veteran's death. 3. At the time of his death, the Veteran had no pending claims for VA benefits. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking entitlement to all benefits due and unpaid the Veteran at the time of his death in March 2007. In this context, the law provides that, upon the death of a veteran, a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1000 (2010). 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). By statute, an appellant takes the veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Therefore, in order 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; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Review of the record reveals that the Veteran died in March 2007, and that the appellant filed her DIC claim, which included a claim for accrued benefits, in June 2007. Therefore, the accrued benefits claim is considered timely. See 38 C.F.R. § 3.1000(c). Nevertheless, after reviewing the evidence of record, the Board finds there is no evidence showing that there were any claims pending at the time of the Veteran's death in March 2007. The evidence shows that the Veteran filed claims seeking entitlement to service connection and increased disability ratings prior to his death; however, all of the Veteran's claims were adjudicated prior to his death. In August 1998, the Veteran filed a service connection claim for several disabilities, including posttraumatic stress disorder (PTSD), jungle rot, malaria, residuals of a truck injury, and a skin disability due to herbicide exposure. The Veteran's claims were adjudicated in a January 1999 rating decision, wherein the RO granted service connection for malaria, effective August 1998, and denied service connection for the remaining claimed disabilities and entitlement to nonservice-connected pension. The Veteran was notified of the RO's decision but he did not appeal the RO's determination. Therefore, the January 1999 rating decision became final. See 38 U.S.C.A. § 7105. In September 2001, the Veteran filed a claim seeking service connection for diabetes mellitus. Entitlement to service connection for diabetes mellitus was granted in a rating decision dated in February 2002, and the RO assigned a 20 percent disability rating, effective July 2001. A May 2002 rating decision continued the 20 percent disability rating. The May 2002 rating decision also reconsidered entitlement to service connection for jungle rot and residuals of a truck injury, but the RO determined that service connection was not warranted for those disabilities. The Veteran was notified of the RO's decision but he did not appeal the May 2002 rating decision. Therefore, the May 2002 rating decision became final. See 38 U.S.C.A. § 7105. In April 2003, the Veteran filed a claim seeking an increased rating for service-connected diabetes mellitus, as well as entitlement to service connection for neuropathy affecting his feet and left arm. In a rating decision dated July 2003, the RO granted service connection for impotence and skin lesions, effective June 2003, and peripheral neuropathy affecting the Veteran's bilateral hands and feet, effective August 2002. The RO also granted an earlier effective date of May 8, 2001, for the grant of service connection for diabetes mellitus, but the RO determined that an increased rating higher than 20 percent was not warranted. The Veteran was notified of the RO's decision but he did not initiate an appeal. Therefore, the July 2003 rating decision became final. See 38 U.S.C.A. § 7105. Based on the foregoing, the Board finds that all claims filed by the Veteran prior to his death were adjudicated and considered closed, as he did not perfect an appeal as to any issue. The Board also notes that the evidentiary record does not contain any other communication from the Veteran which reflects that he requested a determination of entitlement or which shows that he believed he was entitled to any other benefit prior to his death. 38 C.F.R. §§ 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The appellant has asserted that the Veteran filed a service connection claim at the RO in Long Beach, California, in May 2006, and that the claim was never adjudicated. The appellant has asserted that, in the claim filed in May 2006, the Veteran sought entitlement to service connection for disabilities related to his exposure to herbicides, including vision problems, skin problems, and hepatitis C, and that the Veterans Service Organization, Disabled American Veterans, assisted the Veteran with filing his claim. While the appellant has asserted that the Veteran filed a claim in May 2006 which was never addressed, she has been unable to provide evidence that confirms the Veteran submitted a claim for benefits to VA in May 2006. The appellant testified that several individuals at the Long Beach RO assisted the Veteran with his claim; however, she has not been able to locate any documents which show that a claim was filed in May 2006. In this regard, the Board finds probative that the evidentiary record contains extensive documentation of every claim submitted by the Veteran prior to his death, and there is no indication in the record that the Veteran sought entitlement to any benefit following the July 2003 claim; nor is there any statement from the Veteran inquiring as to the status of a claim that had not been adjudicated by the RO. Without evidence of a claim submitted by the Veteran and received by the RO following the July 2003 rating decision, the Board cannot make a finding that a claim was pending at the time of the Veteran's death. The appellant has also provided extensive argument and evidence in an effort to establish that the RO incorrectly denied the claims submitted by the Veteran prior to his death, including service connection for PTSD. However, because the Veteran did not initiate or perfect appeals as to issues that were denied by the RO prior to his death, including service connection for PTSD, those issues are considered closed and the appellant is unable to argue or establish that errors were committed in the rating decisions issued prior to the Veteran's death. As noted, the appellant takes the Veteran's claims as they stood on the date of his death, and there is no indication that the Veteran disagreed with any determination made by the RO prior to his death. See Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In sum, the Board finds the preponderance of the evidence is against a finding that claims were pending at the time of the Veteran's death and, thus, entitlement to accrued benefits cannot be granted. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In evaluating this claim, the Board is sympathetic to the appellant. Unfortunately, the Board is unable to provide a legal remedy in this case, given the lack of entitlement to the benefit sought under the law. Indeed, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104 (West 2002); see Harvey v. Brown, 6 Vet. App. 416 (1994). 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). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; (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 in accordance with 38 C.F.R. § 3.159(b)(1). In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that 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). (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to accrued benefits is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs