Citation Nr: 1305808 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-22 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received with respect to a claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and J.W. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1950 to August 1952. He received the Purple Heart Medal. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied the appellant's petition to reopen a claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for residuals of Legionella pneumonia due to treatment in June 1994 at the VA Medical Center in Pittsburgh, Pennsylvania. The appellant testified before the undersigned at a May 2012 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with the claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In a May 2009 statement (VA Form 21-4138), the appellant raised the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in April 2004. 2. The appellant's initial petition to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia for purposes of accrued benefits was denied in a September 2004 rating decision on the basis that new and material evidence showing a residual disability from Legionella pneumonia due to VA treatment had not been submitted; the appellant did not properly appeal that determination and new and material evidence was not received within a year of its issuance. 3. The appellant again submitted a petition to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia for purposes of accrued benefits in June 2007, more than one year following the Veteran's death. CONCLUSIONS OF LAW 1. The RO's September 2004 decision that denied the petition to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia for purposes of accrued benefits is final. 38 U.S.C.A. §§ 7105(a), (b)(2), (d)(3), 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.32, 20.200, 20.302(b), 20.1103 (2012). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. §§ 5101(a), 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). A claim for accrued benefits must be adjudicated on the basis of the evidence of record at the date of the Veteran's death. 38 C.F.R. § 3.1000. While certain documents created by, or in the custody of VA, are deemed to be constructively of record, there have been no reports of such evidence in this case. No reasonable possibility exists that further notice or assistance would aid in substantiating the claim for accrued benefits and any deficiencies of notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Analysis An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits. The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Accordingly, the two-year limit on benefits is not applicable in this case. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In order to support a claim for accrued benefits, the Veteran or other payee 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); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the Veteran died in April 2004. The appellant filed a claim for dependency and indemnity compensation, to include accrued benefits, in April 2004. In a September 2004 rating decision, the RO denied entitlement to service connection for the cause of the Veteran's death and denied the appellant's petition to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia for purposes of accrued benefits. The appellant submitted a timely notice of disagreement with respect to these issues in May 2005 and a statement of the case was issued in November 2005. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to an appellant. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of notice of the result of initial review or determination, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Such notice must be in writing. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302(b). In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The RO did so in this case, as evidenced by the fact that it did not certify the service connection and 1151 issues set forth above to the Board following the November 2005 statement of the case. In a January 2011 statement, the appellant's representative contended that the claim currently before the Board originated from the September 2004 rating decision. However, the only document received from the appellant within 60 days of the date of mailing of the November 2005 statement of the case was a completed copy of the hearing request form which accompanied the statement of the case. She indicated on this form, which was received by the RO in December 2005, that she wished to be scheduled for a Travel Board hearing before a Veterans Law Judge. Nevertheless, the appellant did not submit any timely substantive appeal (VA Form 9) in response to the November 2005 statement of the case. The evidence which prompted the RO to issue the May 2009 rating decision was not received until June 2007. As the appellant did not submit any substantive appeal pertaining to the service connection and 1151 issues listed in the November 2005 statement of the case within 60 days after the issuance of the statement of the case, the RO closed the appeal. In an April 2007 letter, the RO notified the appellant that a timely substantive appeal had not been received following the November 2005 statement of the case and that no further action would be taken on that appeal. A copy of this letter was also sent to her representative. The RO did not certify those issues to the Board at that time and no further action had been taken by VA to suggest that these issues were on appeal. Moreover, new and material evidence was not received within one year of the September 2004 decision. Thus, the September 2004 rating decision became final, the issue of entitlement to service connection for the cause of the Veteran's death is not currently before the Board, and the current 1151 claim before the Board originates from the May 2009 rating decision. See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The appellant's most recent claim for accrued benefits was received in June 2007, more than three years following the Veteran's death. As she had previously been denied entitlement to accrued benefits, it would appear that her claim is one to reopen. However, the statute governing accrued claims is specific as to the time frame within which such claims must be filed. In this regard, the Board notes that under 38 U.S.C.A. § 5121(c), "[a]pplications for accrued benefits must be filed within one year after the date of death." While the appellant's initial claim for accrued benefits was received the same month as the Veteran's death, that claim was denied in the September 2004 rating decision. As explained above, that decision became final. The appellant's current claim for accrued benefits was filed more than three years after the Veteran's date of death. As such, it does not meet the statutory requirement for the payment of accrued benefits. In addition, the Board notes that the language of 38 U.S.C.A. § 5121(c) further lends support for the conclusion that finally denied claims for accrued benefits cannot be reopened. Specifically, the statute states that if a claimant's application is incomplete, VA shall notify the claimant of the evidence necessary to complete the application and if such evidence is not received within one year of the date of such notification, no accrued benefits may be paid. Such language indicates that once the specific time limit elapses, no accrued benefits will be paid if the requested evidence is ultimately submitted in an untimely manner. As explained above, new and material evidence was not submitted within one year of the September 2004 decision. In summary, as the original claim for accrued benefits was denied and became final, and the current claim was not received within one year following the date of the Veteran's death, there is no basis on which the appellant's claim may be granted. The Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of accrued benefits. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the United States Court of Appeals for Veterans Claims pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424, citing OPM v. Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 2474 (1990). Where, as here, the law and not the evidence is dispositive, the appellant's petition to reopen the claim for accrued benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of Legionella pneumonia for purposes of accrued benefits is not reopened, and the appeal is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs