Citation Nr: 1313600 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 08-18 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. WITNESSES AT HEARINGS ON APPEAL Appellant and Son ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from June 1953 to March 1957. He died in April 2007. The appellant is his surviving spouse. This case arises to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2011, the appellant and her son testified before the undersigned at a personal hearing conducted at the RO. A transcript of that hearing has been included in the claims folder. The Board remanded the case for development in August 2010, August 2011, and March 2012. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran died on April [redacted], 2007, of an intracranial hemorrhage due to non-service-connected thrombocytopenia and chronic lymphocytic leukemia. 2. At the time of death, service connection was in effect for bilateral deafness (100 percent), tinnitus (10 percent), and hemorrhoids (zero percent). The combined schedular evaluation was 100 percent and a total rating had been in effect from September 10, 1997 (approximately 9 years, seven months). 3. The Veteran was not evaluated as totally disabled for ten continuous years immediately preceding his death, was not evaluated as totally disabled continuously from the date of separation from service and for a period of not less than five years immediately preceding his death, and was not a former prisoner of war. 4. The Veteran was not "entitled to receive" total disability compensation by way of any of the exceptions listed under 38 C.F.R. § 3.22(b). CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22(a) (2) (i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Appeals for Veterans Claims held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, it appears that all action items requested by the Board in prior remands have been accomplished to the extent possible. The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. 38 U.S.C.A. § 5103A (West 2002); § 5103 (West 2002 & Supp 2012). Pertinent VA regulations are set forth at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The VCAA and pertinent VA regulations require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). These requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, insufficiency of content or timing errors of a VCAA notice are harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (notice errors are reviewed under a prejudicial error rule). The Court held that failure to comply with the notice requirement of the VCAA is not prejudicial to the claimant if, based on the facts alleged, no entitlement exists. Valiao v. Principi, 17 Vet. App. 229, 232 (2003). In a February 8, 2008-dated letter, the RO provided notice to the appellant regarding what information and evidence are needed to substantiate her claim, as well as what information and evidence must be submitted by her and what information and evidence will be obtained by VA; however, where the issue is entitlement to DIC, this was inadequate notice. In the context of a claim for DIC benefits, 38 U.S.C.A. § 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Although inadequate notice regarding the claim for DIC was sent to the appellant in February 2008, any prejudicial effect may be remedied. The VCAA notice deficiency is not prejudicial to the appellant where she had actual knowledge in this regard. It cannot be disputed that the appellant had actual knowledge that service-connection was in effect for bilateral profound deafness. While VA's duty to notify cannot be met by cobbling together pre-and post-decisional documents, such as rating decisions and statements of the case (Mayfield v. Nicholson, 444 F.3d 1328 (Fed Cir. 2006)), there is no prohibition to demonstrating actual notice by an appellant so as to render a VCAA notice defect non-prejudicial. The Board has remanded the case for development and Appellant points out in her argument that the Veteran's total deafness had existed for more than 10 years prior to his death. Based on the foregoing, the Board concludes that Appellant has had meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication is not affected. The appellant has been an active participant in the claims process by submitting evidence and providing argument. The evidence of record is against a finding that she has been prejudiced by insufficient notice. Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA must also assist the appellant by obtaining all pertinent medical records. VA has made reasonable efforts to obtain all relevant records identified by the appellant. Specifically, pertinent service treatment records, private and VA medical records, and the death certificate have been obtained. Appellant has been notified that all attempts to obtain SSA records have failed. DIC When a Veteran dies, not as the result of his own willful misconduct, and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability, and the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or the disability was continuously rated totally disabling for a period of not less than 5 years from the date of such veteran's discharge or other release from active duty, then VA shall pay DIC benefits to the surviving spouse in the same manner as if the veteran's death was service-connected. 38 U.S.C.A. § 1318. Even where a veteran has died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) the veteran's death was not the result of his or her own willful misconduct, and (2) at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. "Entitled to receive" means that at the time of death, the veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22. The Veteran's 100 percent schedular rating had not been in effect for at least 10 years prior to his death. While his death occurred only a few months prior to the 10th anniversary of a 100 percent schedular rating, as such, this does not fulfill the criteria for a grant of DIC benefits. In her notice of disagreement, Appellant argued that the 10-year requirement had been met because the Veteran's increased payment was made effective by VA on October 1, 1996. She repeated this argument in her substantive appeal. A review of the record reflects, however, that payment at the 100 percent rate did not begin until October 1, 1997. Therefore, the Appellant's argument fails. During a hearing in June 2009, the appellant testified that the Veteran's hearing had worsened far earlier than when VA finally granted an increased, 100 percent rating in its December 1997 rating decision. The undersigned explained at the hearing that one way to obtain an earlier effective date of increased benefits would be to show clear and unmistakable error (hereinafter: CUE) in that or a previous RO rating decision. Appellant did not, however, raise a claim of CUE in any decision. VA subsequently developed the record by obtaining VA out-patient treatment reports. None of these, however, show an increase in hearing loss disability within the one-year period prior to receipt of the claim for an increase on September 10, 1997. Concerning the accuracy of the December 1997 RO rating decision, that decision discusses that although an effective date of September 10, 1997 was being assigned for the 100 percent rating based on the date that the RO received a claim for an increase, the RO would search for evidence of treatment reports that could warrant an earlier effective date for the increase. In December 1997, the Syracuse VA Medical Center answered the RO's inquiry and confirmed that it had no medical file concerning the Veteran. In January 1998, the RO issued a new rating decision confirming the September 10, 1997 effective date, based on no favorable evidence found. In May 2011, Appellant testified before the undersigned that the Veteran was completely deaf for more than 10 years and she recalled that he obtained a note from VA in order to be exempted from local jury duty in March 1997 because of deafness. At the hearing, she submitted a letter from VA to the Veteran concerning this. The VA outpatient clinic letter, dated April 4, 1997, states that VA was returning the Veteran's request for a medical excusal from jury duty on the basis that VA had no medical file on the Veteran. She also submitted a letter, dated April 8, 1997, from the Buffalo RO to the effect that VA acknowledged that the Veteran currently was service-connected and 20 percent disabled due to impaired hearing and zero percent disabled due to hemorrhoids. Unfortunately, neither of these submissions evidences an increase in hearing loss disability such that it could form the basis of an informal claim for an increase under 38 C.F.R. §§ 3.157, 3.400. Thus, further inquiry into whether the RO rating decision of December 1997 is based on CUE for failure to consider this evidence (constructively in VA's possession at the time) is not indicated. Appellant's claim for DIC under 38 U.S.C.A. § 1318 must be denied because the Veteran did not have a service-connected disability that was continuously rated as totally disabling for a period of 10 or more years immediately preceding his death. Tarver v. Shinseki, 557 F.3d 131 (2009). Furthermore, entitlement to these benefits must be denied as a matter of law. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318 is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs