Citation Nr: 1317593 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-18 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to service connection for cause of the Veteran's death. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Mr. Lewis C. Fichera, Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1969 to June 1971. The appellant is the Veteran's surviving spouse. The Veteran died in November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). In that rating decision, the RO denied the claims sought on appeal. In October 2012, the appellant testified before the undersigned Acting Veterans' Law Judge during a hearing at the Central Office, in Washington, District of Columbia. The appellant was provided an opportunity to set forth her contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In December 2012, the Board requested a medical expert opinion through a Veterans Health Administration (VHA) directive. A May 2013 VHA medical expert opinion is on file and a copy of this opinion has been sent to the appellant. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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. The Veteran died on November [redacted], 2008 and the cause of death was widespread skeletal metastasis due to carcinoma. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran had service in Korea from June 1970 to November 1970, along the demilitarized zone (DMZ), and he was assigned to the 2nd Infantry, 7th Battalion and 17th artillery. His exposure to herbicide agents during his period of service may be presumed. 4. It is as likely as not that the cause of the Veteran's cause of death due to widespread skeletal metastasis due to carcinoma is related to his in-service exposure to Agent Orange. 5. The Veteran submitted a claim for service-connected benefits, which was received by VA on November 5, 2008. 6. The Veteran's eligibility for service-connected benefits terminated before payment for such benefits would have become due or payable. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the appellant, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311, 3.312 (2012). 2. The criteria for accrued benefits based on a pending claim for service-connected benefits have not been met. 38 U.S.C.A. §§ 503, 1102, 1304, 1541, 5112, 5121, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.31, 3.159(d), 3.160, 3.500(g), 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 1. VA's Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to the claim for service connection for cause of the Veteran's death, to the extent that the action taken below is favorable to the appellant, further discussion of VCAA is not required at this time. With respect to accrued benefits, since the matter involves a question of law, and not the facts that are dispositive, the notice and assistance obligations specified under the VCAA do not apply. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003) ("Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision."). See also, Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Here, the outcome is determinative according to the laws and regulations involving who may receive accrued benefits. There is no contention or reasonable indication that further factual development would be of assistance 2. Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of death of the Veteran, the evidence must establish that a disability of service origin caused, hastened, or substantially and materially contributed to the Veteran's death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The principal cause of death is one which singularly or jointly with some other condition was the immediate cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Accordingly, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Also, certain chronic diseases may be presumed to have been incurred in service if they are manifested to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (Both discussing the factors of service connection). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset), porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease and Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment is to establish presumptive service connection for these diseases based on herbicide exposure. The final rule is applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. The final rule is applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. Additionally, VA will apply this rule in readjudicating certain previously denied claims as required by court orders in Nehmer v. Department of Veterans Affairs, No. CV-86-6161 TEH (N.D. Cal.). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The benefit of the doubt rule provides that the claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the claimant prevails in his or her claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the appellant seeks entitlement to service connection for cause of the Veteran's death. The Veteran's certificate of death shows the immediate cause of death was listed as colon cancer. The appellant reports that the Veteran also suffered from malignant melanoma prior to his death, and this condition also led to his ultimate demise. The medical evidence confirms a diagnosis of and treatment for malignant melanoma prior to the Veteran's death. His private oncologist, Dr. J.G. has associated the Veteran's malignant melanoma to his ultimate death from colon cancer with metastases. The appellant contends that the Veteran developed colon cancer and malignant melanoma as a result of his in-service exposure to Agent Orange when he served in Korea along the DMZ. The available service personnel records show that the Veteran had service in Korea from May 1970 to June 1971. Service personnel records show that the Veteran served along the DMZ from June 1970 to November 1970 while he was in Korea, and he was assigned to the 2nd Infantry, 7th Battalion and 17th artillery. Prior to February 2011, the Department of Defense (DOD) recognized that certain veterans who had served with a limited number of units had been exposed to herbicides during their tour of duty in Korea near the DMZ from April 1968 to July 1969. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The Veteran's service personnel records showed his service in Korea started in May 1970, which was outside of the period for which the presumption was available, and his claim was denied by the RO on this basis. Effective February 24, 2011, however, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DOD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). This amendment was to apply to all applications for benefits received by VA on or after February 24, 2011 and to all applications for benefits pending before VA on February 24, 2011. VA believed it was reasonable and consistent with the intent of Congress to concede exposure for veterans who served in or near the Korean DMZ after herbicide application ceased, because of the potential for exposure to residuals of herbicides applied in that area. See 149 Cong. Rec. H11705 -01 (2003). A list of service units that have been recognized by the DOD as having served in areas along the Korean DMZ may be found in VA's M21-1MR at part IV, subpart ii, chapter 2, § C.10.p. Exposure to herbicides is conceded for veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and July 1969. However, the Board notes that VA is in the process of revising M21-1MR to add additional units, as well as to extend the dates of potential herbicide exposure along the DMZ from April 1, 1968 to August 31, 1971, in accordance with the amendment cited above. In reviewing VA's Adjudication Procedure Manual (M21-1MR), as pertinent to this claim, the Board notes that DOD has identified the 2nd Infantry, 7th Battalion, to which the Veteran was assigned from June 1970 to November 1970, as one of the units that was assigned or rotated to areas near the DMZ where herbicides were used between April 1968 and July 1969. See M21-1MR at part IV, subpart ii, chapter 2, § C.10.p. Again, this list is still under revision in order to encompass the extended the dates of potential herbicide exposure along the DMZ from April 1, 1968 to August 31, 1971. There is documentation of record that shows that the Veteran was assigned to 7th Battalion, 2nd Infantry and he served along the DMZ when he was assigned to that unit. As the Veteran had service in Korea from June 1970 to November 1970, along the DMZ, and he was assigned to the 2nd Infantry, 7th Battalion and 17th artillery, his exposure to herbicide agents in service may be presumed. See 38 C.F.R. § 3.307 (a)(6)(iv); 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). With inservice exposure to Agent Orange, service connection is presumed for conditions identified as related to such exposure and itemized at 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Notwithstanding the provisions of §§ 3.307, 3.309, the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds that the evidence of record is at least in equipoise on whether the cause of the Veteran's death, widespread skeletal metastasis due to carcinoma, is related to his periods of service, to include his in-service exposure to Agent Orange. Here, the Board finds that the evidence is at least in approximate balance as to whether service connection is warranted for the cause of the Veteran's death. Therefore, service connection for the cause of the Veteran's death is warranted. There is competent and credible evidence that the Veteran first developed colon cancer or malignant melanoma more than two decades after his separation from service. The record shows that the Veteran first sought treatment for melanoma in 2004 and colon cancer was diagnosed in 2008. There is competent and credible evidence that colon cancer was the immediate cause of the Veteran's death and there is medical evidence which links the colon cancer to the Veteran's in-service exposure to herbicides agents. The Veteran death certificate listed colon cancer as the Veteran's cause of death. The record contains several medical statements from Dr. J. G., the Veteran's treating private oncologist. In these various statements, Dr. G. opines that the cause of the Veteran's death, colon cancer, is likely related to his in-service exposure to Agent Orange. Collectively, in these medical statements, Dr. G. notes that the Veteran's medical history was significant for an in situ malignant melanoma and he had no family history or other risk factors for colon cancer. In 2008, the Veteran presented with a lesion on his colon, which was diagnosed as early colon cancer, and the lesion was removed. Dr. G. opined that the colon cancer caused extensive metastatic bone lesions, and included bone marrow involvement. Dr. G. found that this was an extremely rare case where there were fewer than ten occurrences recorded in the medical literature. Dr. G. opined that "the development of extensive metastatic bone and bone marrow involvement from what appeared to be rather early colon cancer is extremely atypical and highly suggests that his cancer developed out of toxin exposure, likely Dixon." See August 2009 private medical statement. Dr. G. later stated that "it is my opinion with a reasonable degree of medical certainty that more likely than not the residuals of the dioxin, Agent Orange... was responsible for [the Veteran's] multiple cancers," including his colon cancer that ultimately led to his death. See February 2010 private medical statement. The Board notes that neither colon cancer nor malignant melanoma are among the diseases itemized at 38 C.F.R. § 3.309(e) and recognized as a disease for which presumptive service connection is available on the basis of herbicide exposure. Consequently, colon cancer and malignant melanoma may not be service-connected on a presumptive basis. The availability of presumptive service connection for a disability based on exposure to herbicides or as a qualifying chronic disability under 38 C.F.R. §3.309(e), however, does not preclude an appellant from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In December 2012, the Board sought a VHA medical advisory opinion in order to determine the Veteran's cause of death and whether the cause of death was related to his period of service including herbicide exposure in service. An April 2013 VHA medical expert opinion has been associated with the claims folder. The VHA medical expert, a medical oncologist and hematologist, conducted an extensive review of the claims folder and noted the Veteran's medical history. The medical expert noted that malignant melanoma in situ was diagnosed in March 2004. In June 2008, the Veteran presented with severe back pain and was evaluated by his private physician. A July 2008 magnetic resonance imaging (MRI) revealed multiple abnormal bone lesions involving the thoracic lumbar spine. A July 2008 nuclear bone scan revealed extensive bone metastasis in many locations of the skeleton. An August 2008 needle biopsy of the L1 vertebra revealed cancer cells in sheets, that were positive to the pancytokeratin and cytokeratin-20 but were negative for cytokeratin-7, TTF-1, PSA and HMB45 stains and this was interpreted as metastatic carcinoma. There was an additional comment that suggested that the possibility of the colonic origin based on the histochemical markers. The medical expert further noted that in August 2008, the Veteran's private physician documented the Veteran's diagnoses as "metastatic bone lesions, unknown primary" and initiated further work up to identify the primary source of this malignancy. An August 2008 PET/CT scan study showed widespread hypermetabolic bone metastasis with many lesions that were lytic and some that were blastic involving the spine, sternum, clavicle, both scapula, proximal upper and lower extremities, and bilateral ribs. The medical expert noted that in September 2008, the Veteran underwent a colonoscopy for a transverse colonic mass with biopsy revealing invasive adenocarcinoma of the colon. The Veteran underwent a right laparoscopic colectomy to remove the colon cancer which showed moderately to poorly invasive adenocarcinoma with invasion into the pericolonic fatty tissue and some foci of the lymphovascular invasion and positive involvement of 17 of 23 lymph nodes removed. The medical expert indicated that in November 2008, the Veteran passed away at a hospice unit. He was pronounced dead by a nurse at the hospice unit who signed his death certificate and listed colon cancer as the cause of death. The medical expert noted that the Veteran clearly had evidence of widespread skeletal metastasis based upon the bone scan, CT scan, and PET/CT scan and this appears to be directly related to the Veteran's death. The medical expert concluded that the cause of the Veteran's death was widespread skeletal metastasis which was at least as likely as not related to his presumed Agent Orange exposure. The medical expert questioned whether the source of the Veteran's malignant bone metastasis was from colon cancer rather than another potential other malignancies such as lung cancer, prostate cancer, or thyroid cancer, given the unusual progression of the malignant disease and the inconsistent diagnostic findings. The medical expert noted that it was very unlikely for malignant colon cancer to spread to the bones while skipping the liver and other organs. Moreover, the medical expert felt that the glandular appearance on the biopsy of the bone lesion is unexpected for colon cancer. The VHA medical expert opined that it was as likely as not that the Veteran's bone metastasis arose from a malignancy that has been recognized by the National Academy of Science as related to Agent Orange exposure and this malignancy ultimately resulted in his death. The medical expert indicated that it was as likely as not that the bone metastasis arose from one of the other potential malignancies such as lung cancer, prostate cancer, or thyroid cancer all of which are well known to have significant affinity to spread to the bones. The medial expert noted that two of the potential options are accepted by the National Academy of Sciences to be related to Agent Orange exposure. Although the medical expert questioned the original source of the malignancy that lead to the widespread skeletal metastasis, similar to Dr. G., the VHA medical expert concluded that the underlying malignancy that caused the Veteran's death was related to his in-service exposure to herbicides. The Board finds that the April 2013 VHA medical opinion is persuasive and has great probative weight. The opinion was rendered by a qualified medical professional who, as an oncologist and hematologist, has the clear expertise to opine on the matter at issue in this case. The medical expert provided a rationale for the opinion and cited to the specific facts which supported the opinion. The VHA medical opinion reflects a comprehensive and reasoned review of the entire evidentiary record. Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds it highly pertinent that there is no medical opinion of record that establishes that the cause of the Veteran's death was not related or due to the in-service exposure to Agent Orange. There is competent evidence that weighs against the claim for service connection for the cause of death. A review of the Veteran's service treatment records does not show any complaints, treatment or diagnosis of cancer in service. On his May 1971 report of examination prior to separation from service, the Veteran received normal physical evaluation. The medical evidence shows that the Veteran's colon cancer, malignant melanoma, and the widespread skeletal metastasis first manifested two decades after his discharge from service. See 38 C.F.R. § 3.303. The significant evidentiary gap between the Veteran's active service and the earliest medical evidence of cancer weighs against the appellant's claim for service connection for cause of the Veteran's death on a direct basis. A lengthy period without treatment weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). There is competent evidence both for and against the claim on appeal. Affording the appellant the benefit of the doubt, the Board finds that the evidence establishes that it is as likely as not that the cause of the Veteran's death is likely related to his in-service exposure to Agent Orange. See 38 C.F.R. §§ 3.303 and 3.312. The appellant's claim for service connection for cause of the Veteran's death is warranted. 3. Accrued Benefits Upon the death of a Veteran, the Veteran's lawful surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the Veteran died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, certain individuals may be entitled to accrued benefits under certain conditions. Landicho v. Brown, 7 Vet. App. 42, 47 (1994). One of the requirements for accrued benefits is that a claim must be filed within the year after the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The appellant's application for accrued benefits was received in November 2008, within the same month of the Veteran's death. For a surviving spouse 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). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). In turn, the term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d). The RO received the Veteran's claim for service-connected benefits on November 5, 2008, the day just prior to the date of his death, November [redacted], 2005. There is no evidence that a claim for benefits, either formal or informal, was received prior to that date. Pursuant to the provisions of 38 C.F.R. § 3.400(b)(1)(ii), the effective date of an award of service connection is the date of receipt of a claim, or the date entitlement arose, whichever is later. Payment of monetary benefits will commence the month following the effective date of the award. 38 C.F.R. § 3.31. In this case, the effective date of the Veteran's eligibility for service-connected benefits would have been November 5, 2008. Therefore, the earliest point at which monetary benefits could have begun was December 1, 2008. However, the effective date of discontinuance of compensation, dependency and indemnity compensation, or pension by reason of the death of the payee is the last day of the month before death occurred. 38 U.S.C.A. § 5112 (West 2002); 38 C.F.R. § 3.500(g)(1). In this case, that would have been November 30, 2008. As such, any award to the Veteran of service-connected benefits would have terminated November 30, 2008, prior to December 1, 2008, the earliest date of the period for which payment could be made. Hence, at the time of the Veteran's death on November [redacted], 2008, no service-connected benefits were due or payable to the Veteran. As there existed no service-connected benefits due or payable to the Veteran at the time of his death, the appellant is not entitled to accrued benefits based on any posthumous award of service-connected benefits as a result of a pending claim at the time of his death. In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board sympathizes with the appellant, but under the applicable law and regulations, the facts argued in this matter are not relevant. The law does not provide any relevant exception to in this case. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The claim must be denied. ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs