Citation Nr: 1317435 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-22 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, V.P., S.B., C.Q. ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from September 1942 to August 1946. The appellant is the Veteran's widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the March 2013 hearing, the appellant stated that she wished to withdraw her appeal of the issue of entitlement to service connection for the cause of the Veteran's death. 2. The Veteran was not evaluated as totally disabled due to service-connected disabilities for ten continuous years immediately preceding death, nor was he rated totally disabled continuously after his discharge from service for a period of not less than five years. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of the appellant's claim for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Sup. 2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2012). 2. The criteria for DIC benefits under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. §§ 1318, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.22, 20.1106 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105(a) (West 2002 & Supp. 2012); 38 C.F.R. § 20.200 (2012). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Further, a Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b) (2012). The March 2013 hearing transcript reflects that at a prehearing conference, it was determined that the appellate issue of entitlement to service connection for the cause of the Veteran's death would be withdrawn. See March 2013 Hearing Transcript (Tr.) at p. 2. The Board finds that this statement qualified as a withdrawal of the issue of entitlement to service connection for the Veteran's cause of death. Accordingly, the claim will be dismissed. II. Notice and Assistance With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008). The United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. The Court held that in the context of a claim for cause of death 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 cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The appellant has withdrawn her claim for service connection for the Veteran's cause of death, as discussed above. With respect to the appellant's claim for DIC benefits pursuant to 38 U.S.C.A. § 1318, the Board has determined that there is no legal entitlement to the claimed benefit as a matter of law. The notice provisions and duty to assist provisions are not applicable to a claim where the 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. VAOPGCPREC 5-2004 (June 23, 2004). These matters involve an inquiry based upon the evidence of record prior to the Veteran's death and not based upon the development of new evidence. As there is no dispute as to the underlying facts of this case, and as the Board has denied the claim as a matter of law, the notice and duty to assist provisions are inapplicable. See e.g. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001). Given the foregoing, there is no issue as to whether VA has complied with its duty to notify the appellant of her duties to obtain evidence, and the Board finds that there is no reasonable possibility that any further assistance would aid the appellant in substantiating her claim for DIC under 38 U.S.C.A. § 1318. 38 U.S.C.A. §§ 5102, 5103, 5103A; see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, the appellant and her representative's testimony at the March 2013 hearing reflect that the appellant had actual knowledge of the elements of a claim for entitlement to DIC under 38 U.S.C.A. § 1318. Accordingly, it is not prejudicial for the Board to decide the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318 without further development. Bernard v. Brown, 4 Vet. App. 384 (1993). III. DIC pursuant to 38 U.S.C.A. § 1318 Legal Criteria 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, or the Veteran was a former prisoner of war who was continuously rated totally disabling for not less than one year immediately preceding his death and died after September 30, 1999, then VA will 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. "Entitled to receive compensation" means that at the time of death, a Veteran had a 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. 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 (CUE) 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 determined that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22. Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during a Veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after a Veteran's death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). Analysis The Veteran died in July 2008. At the time of the Veteran's death, he had a total disability rating for compensation purposes based on individual unemployability (TDIU) effective March 31, 2003, less than ten years prior to his death. He was service-connected for tinea pedia, manuum, and scaling of the elbows, rated as 30 percent disabling from March 13, 1997, and as 60 percent disabling from March 31, 2003. He was also service-connected for residuals of an appendectomy, rated as noncompensable. Thus, the Veteran did not satisfy the criteria for DIC benefits under 38 U.S.C.A. § 1318 at the time of his death. In a statement received in February 2010, the appellant noted that the Veteran filed a claim for a back condition in the mid 1990s. She noted that in 2003, he again applied for an increase in his benefit and he was awarded 100 percent. She asserted that the Veteran had not been able to work due to his back and the fact that his hand and feet bled for about 13 years. She stated that if he had been given a 100 percent at the time of his first request, he would have fulfilled the required time limit. At the March 2013 hearing, the appellant and her representative testified that the Veteran was treated for his skin by VA in the 1950s and 1960s, and from the 1970s until his death. (March 2013 Board Hearing Transcript (Tr.) at p. 3-4) The appellant testified that the Veteran's skin was not as severe in the period of 1995 to 1998 as it was in 2003, but it was "very, very troublesome." She stated that it was enough to keep him from working. (Tr. at p. 8-9) In March 1997, the Veteran filed an increased rating claim for his skin disability and a claim to reopen his claim for service connection for a back condition. In an August 1997 rating decision, the RO denied his claim to reopen his claim for service connection for his back. The Veteran's skin disability was evaluated at a VA examination in August 1997. In a January 1998 rating decision, the RO granted an increased rating of 30 percent effective March 13, 1997. The Veteran did not appeal the decision. In March 2003, the Veteran filed another claim for an increased rating for his skin disability. In a September 2003 rating decision, the RO granted an increased rating of 60 percent effective March 31, 2003, for his service-connected skin disability. In April 2004, the Veteran filed a claim for entitlement to a TDIU. In a May 2004 rating decision, the RO granted entitlement to a TDIU effective March 31, 2003, the date of his claim for an increased rating for his skin disability. The appellant and her representative have not specifically asserted that there was clear and unmistakable error (CUE) in any of the rating decisions entered by the RO concerning the Veteran's award of service connection or the ratings assigned for his service-connected disabilities. If a claimant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. 38 C.F.R. § 3.22(b)(3); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Similarly, the appellant has not identified or submitted additional, previously unconsidered service department records that would provide a basis for reopening a previously decided claim. Consequently, the record provides no basis for an award of DIC benefits under 38 U.S.C.A. § 1318, and the claim must be denied. Because the appellant does not meet the basic criteria under the law for eligibility for DIC benefits under 38 U.S.C.A. § 1318, the law is dispositive without regard to any other facts in the case. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appeal for DIC benefits under 38 U.S.C.A. § 1318 is denied as a matter of law. ORDER Entitlement to service connection for the cause of the Veteran's death is dismissed. Entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs