Citation Nr: 1303472 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-32 374A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to basic eligibility for accrued benefits based on a claim of service connection for hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. The appellant is the widow of the Veteran. This case comes to the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant basic eligibility for accrued benefits based on a claim of service connection for hepatitis. FINDINGS OF FACT 1. In August 1989, the Veteran submitted a formal application to reopen a claim of service connection for hepatitis. The claim remained pending and unadjudicated. 2. The Veteran died in May 1994. 3. At the time of his death, the Veteran had a pending application to reopen a claim of entitlement to service connection for hepatitis. 4. The appellant filed a claim for accrued benefits within one year of the date of the Veteran's death. 5. Service connection for hepatitis was denied by the RO in a March 1973 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 6. Since the March 1973 decision denying service connection for hepatitis, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 7. Hepatitis was evident during service and residuals of hepatitis were noted subsequent to service. CONCLUSIONS OF LAW 1. Basic eligibility for accrued benefits based on a claim of service connection for hepatitis are met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.1000 (2012). 2. The additional evidence received subsequent to the March 1973 decision of the RO that denied service connection for hepatitis is new and material; thus, service connection for this disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Hepatitis was incurred in service for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A May 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the appellant was responsible for providing. This letter also informed the appellant of basic eligibility requirements for accrued benefits. The appellant has had ample opportunity to respond and supplement the record. With respect to the duty to assist, consideration of a claim for accrued benefits is based on the evidence of record at the time of the veteran's death. See Zevalkink v. Brown, 6 Vet. App. 483, 489- 90 (1994). Hence, no further assistance on the part of VA is required to develop the record. Law and Regulations for Service Connection for Accrued Benefits Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). For a surviving spouse, children, or dependent parents 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." Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, the law also provides that an application for accrued benefits must be filed within one year after the date of a veteran's death under 38 C.F.R. § 3.1000(d)(5). While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of that Veteran's claim; thus, an appellant takes a veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Therefore, in order for a claimant to be entitled to accrued benefits, a 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. 38 U.S.C.A. §§ 5101(a) , 5121(a) (West 2002); see also Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Eligibility for Accrued Benefits Based on a Claim of Service Connection for Hepatitis The appellant claims that, at the time of his death, the Veteran had an unadjudicated claim of service connection for hepatitis pending. She essentially asserts that, as she submitted a claim for accrued benefits in a timely manner, this claim has remained pending and must be addressed. It is initially noted that the Veteran died in May 1994 and the appellant's formal claim on VA form 21-534, which includes a claim for accrued benefits for a surviving spouse, was received by VA in September 1994. As such, the appellant' application for accrued benefits was received within one year after the date of the Veteran's death. Accordingly, under 38 C.F.R. § 3.1000, her claim was timely filed. The remaining matter is whether the Veteran had a claim for service connection for hepatitis pending at the time of his death. Review of the record shows that the Veteran submitted his initial claim of service connection for hepatitis in January 1973 and that claim was denied by the RO in a March 1973 rating decision that was not appealed by the Veteran and became final. 38 U.S.C.A. §§ 5108. The Veteran sought to reopen the claim of service connection for hepatitis in 1981, but, after being informed that new and material evidence needed to be submitted, he made no further response and the claim is considered abandoned. 38 C.F.R. § 3.158. In August 1989, the Veteran submitted a VA form 21-526 application for compensation and pension. Regarding the nature of sickness, disease or injuries for which the claim was made, the Veteran listed PTSD and hepatitis. The subsequent rating decision, dated in January 1990, addressed only the claim of service connection for PTSD. Subsequent adjudications, including an April 1993 Board decision, granted service connection for PTSD, but did not address the claim of service connection for hepatitis. VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Board finds that the Veteran's August 1989 claim for benefits reasonably raised an application to reopen the claim for service connection for hepatitis. Having determined that an application to reopen a claim for service connection for hepatitis was reasonably raised by the Veteran in August 1989, the next question at issue is whether that claim was unadjudicated and pending at the time of the Veteran's death. The applicable case law on the question of unadjudicated claims is conflicting. In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit held that where a veteran files more than one claim at a time and the rating decision acts on one claim but not another, the second claim is deemed denied, and the appeal period begins to run. In Ingram v. Nicholson, 21 Vet. App. 232 (2007), however, the Court of Appeals for Veterans Claims (Court) held that a reasonably raised claim remains pending until there is a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated, or an explicit adjudication of a subsequent claim for the same disability. See also Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (affirming Ingram). In determining whether the Veteran's claim had been previously adjudicated, the key question is whether sufficient notice was provided to the Veteran that would allow him to reasonably understand that he would not be awarded benefits for the disability asserted in his pending claim and thus decide for himself whether to accept the decision or seek redress elsewhere. Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010); see also Adams v. Shinseki, 568 F.3d 956, 965 (Fed. Cir. 2009) ("[T]he implicit denial rule is, at bottom, a notice provision."). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. In the instant case, rating decisions subsequent to the August 1989, including the May 1993 Board decision, addressed only the matter of service connection for PTSD. The decisions failed to specifically address the Veteran's reasonably construed application to reopen the claim of service connection for hepatitis. A reasonable person would not have interpreted the decisions as evidencing VA's intent to dispose of a claim of service connection for hepatitis. As such, the Board finds that the Veteran's claim of service connection for hepatitis remained pending from August 1989 claim for benefits until his death in May 1994. Having determined that the appellant meets the basic eligibility requirements necessary to file a claim for accrued benefits, the Board must now determine whether new and material evidence to reopen a claim of service connection for hepatitis for accrued benefits purposes has been received and, if so, whether service connection for hepatitis for accrued benefits purposes is warranted. Application to Reopen As noted, service connection for hepatitis was previously denied by the RO in a March 1973 rating decision. The Veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the March 1973 rating decision that denied service connection for hepatitis included the Veteran's service treatment records (STRs) showing that he was treated for infectious hepatitis during service in July 1969; an examination for separation from service in October 1969, which showed no pertinent abnormality; and a report of January 1973 VA hospitalization, which showed no complaint or manifestation of hepatitis. The March 1973 rating decision denied service connection on the basis that hepatitis was not demonstrated on the most recent examinations of record. Evidence of record subsequent to the March 1973 rating decision that denied service connection for hepatitis includes an August 1992 statement from a VA physician. At that time, the physician noted that the Veteran had a record of severe infectious hepatitis while on active duty and it was difficult to understand "why he does not have at least a 0% rating for residuals of hepatitis." As noted, for the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus 3 Vet. App. at 510. The Board finds August 1992 VA physician statement constitutes new and material evidence such that the claim may be reopened. Service Connection for Hepatitis Having decided that the claim is reopened, as noted, all the evidence on file must now be considered. The next question is whether the Board can conduct a de novo review without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). It is concluded that, given the disposition herein, the Board may proceed with de novo review. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The record shows that the Veteran was treated for infectious hepatitis during service in July 1969. In August 1992, a VA physician rendered an unsolicited medical opinion that the Veteran should be service connected for residuals of hepatitis. This was the only medical opinion of record at the time of the Veteran's death regarding a possible link with service. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Under these circumstances, service connection for hepatitis for accrued benefits purposes is granted. ORDER Basic eligibility for accrued benefits based on a claim of service connection for hepatitis is granted. New and material evidence having been received, a claim of service connection for hepatitis is reopened. Service connection for hepatitis for accrued benefits purposes is allowed. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs