Citation Nr: 1308201 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-30 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to Survivors' and Dependents' Educational Assistance benefits under the provisions of Title 38, Chapter 35, United States Code. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from December 1966 to March 1969. The appellant claims as the Veteran's surviving spouse. This appeal came to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. When the appeal was before the Board in September 2008, entitlement to service connection for the cause of the Veteran's death was denied. The instant issues were remanded for issuance of a statement of the case. The appellant subsequently perfected an appeal with respect to these issues, and the appeal was returned to the Board for appellate consideration. FINDINGS OF FACT 1. The record does not reflect that the Veteran ever filed a claim for VA benefits during his lifetime. 2. No permanent and total service-connected disability was in existence at the date of the veteran's death, and he did not die as a result of a service-connected disability CONCLUSIONS OF LAW 1. The criteria for accrued benefits have not been met. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000(a) (2012). 2. The criteria for entitlement to DEA benefits under the provisions of 38 U.S.C. Chapter 35 have not been met. 38 U.S.C.A. §§ 3501, 3510 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.3001, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, and for the reasons stated below, the Board finds that the appellant has no legal entitlement to accrued benefits; i.e., that this claim must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Despite the foregoing, the Board does note that the Appellant was sent correspondence in December 2009 which, in pertinent part, explained what was necessary to substantiate an accrued benefits claim, what information and evidence she must submit, and what information and evidence will be obtained by VA. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio. Moreover, the appellant has had the opportunity to present evidence and argument in support of her claim, and nothing reflects that she has identified the existence of any relevant evidence that has not been obtained or requested. Specifically, she has not identified any outstanding evidence to reflect the Veteran had a pending claim for VA benefits at the time of his death. Therefore, the Board finds that even if the VCAA were applicable to this claim, the duties to notify and assist would be satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Accrued Benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim, unless the veteran from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In this case, record does not reflect the Veteran ever filed a claim for VA benefits during his lifetime. No documents are of record which could be considered a formal or informal claim for benefits; nothing of record reflects he ever indicated he was seeking or intended to seek such benefits. Rather, the only documents of record are those submitted by the Appellant in support of her current appellate claims. At no point has she indicated the Veteran was in receipt of VA benefits or had filed a claim for such prior to his death. In fact, it does not appear she has provided any specific contentions in support of her accrued benefits claim other than a general claim that she is entitled to benefits as the Veteran's surviving spouse. Because the Veteran had no claims pending at the time of his death, the criteria for entitlement to accrued benefits are not met. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (When the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). DEA For the purposes of educational assistance under Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3021, 21.3030, 21.3040, 21.3041. As with the accrued benefits claim, this is also a claim in which the law is dispositive. Although the record reflects that the Veteran was discharged under conditions other than dishonorable, he did not have a total service-connected disability at the time of his death, and he did not die as the result of a service-connected disability. In this regard, the Board denied the Appellant's claim for service connection for the cause of the Veteran's death in September 2008 and the RO continued the denial of the claim by way of an October 2010 rating decision and determined that new and material evidence had not been submitted to reopen the claim by way of an October 2012 rating decision. As the conditions set forth above are not met, there is no legal basis for a finding of basic eligibility for DEA. Accordingly, this claim must also be denied. See Sabonis. ORDER Entitlement to accrued benefits is denied. Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code, for the appellant is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs