Citation Nr: 1319427 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 06-15 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Eligibility for Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits as a surviving spouse for the Veteran's period of active service from January 1968 to August 1970, including service in Vietnam. 2. Eligibility for Department of Veterans Affairs (VA) death pension as a surviving spouse for the Veteran's period of active service from January 1968 to August 1970, including service in Vietnam. 3. Eligibility for Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits as a surviving spouse for the Veteran's period of active service from December 1990 to June 1991, including service in Southwest Asia. 4. Eligibility for Department of Veterans Affairs (VA) death pension as a surviving spouse for the Veteran's period of active service from December 1990 to June 1991, including service in Southwest Asia. 5. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1970, including service in Vietnam from May 1969 to August 1970. He also was a member of the National Guard for many years, and he served on active duty from December 1990 to June 1991, including service in Southwest Asia from January 1991 to May 1991. The Veteran died in February 2005. The appellant is the Veteran's widow. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an adverse action issued in August 2005, by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York which denied the appellant's claim entitlement to VA death benefits, including dependency and indemnity compensation (DIC). The appellant has represented herself throughout this proceeding. The Board noted that a determination as to whether the basic eligibility requirements for entitlement to service connection for the cause of the Veteran's death had been met was not of record and remanded the case to the RO for additional development in April 2008. While the case was in remand status, the RO issued a rating decision, in October 2008, that denied basic eligibility for death benefits based on a marriage that had existed for less than one year. The case has now been returned to the Board for appellate review. Although the RO considered the appellant's eligibility as a surviving spouse to be a single issue, the Board notes that a surviving spouse's eligibility for death pension and DIC is based on different standards. Compare 38 C.F.R. § 3.54(a) with 38 C.F.R. § 3.54(c). Accordingly, the Board considers them as distinct issues. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims files. The issue of entitlement to the cause of the Veteran's death is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant and Veteran married in October 2004. 2. The Veteran died in February 2005. 3. The appellant and Veteran were married for less than one year prior to the Veteran's death and no child was born to the appellant and the Veteran prior to their marriage or during their marriage. 4. The Veteran and appellant were not married before the expiration of 15 years after the termination of the Veteran's first period of active service in August 1970. 5. The Veteran and appellant were married before the expiration of 15 years after the termination of the Veteran's second period of active service in June 1991. CONCLUSIONS OF LAW 1. The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, including pension, death compensation and DIC, relating to the Veteran's period of service from January 1968 to August 1970 have not been met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 1541, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205, 3.206 (2012). 2. The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death pension benefits relating to the Veteran's period of service from December 1990 to June 1991 have not been met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 1541, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205, 3.206 (2012). 3. Because the Veteran died after December 31, 1956, the criteria for entitlement to death compensation have not been met. 38 U.S.C.A. § 1121 (West 2002). 4. The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to DIC relating to the Veteran's period of service from December 1990 to June 1991, have been met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 1541, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.205, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Similarly the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). As explained below, the appellant fails to meet the definition of "surviving spouse" for the purpose of legal entitlement to VA death pension, death compensation or DIC benefits for the Veteran's first period of service. The appellant also fails to meet the definition of "surviving spouse" for the purpose of legal entitlement to VA death pension benefits for the Veteran's second period of service. In addition, entitlement to death compensation is legally barred because the Veteran died after December 31, 1956. The facts as they stand have not been disputed. Therefore, further development of the factual evidence by VA would not substantiate the appellant's claims. See 38 C.F.R. § 3.159(d). Because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.); see also VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004) (the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, no further action is required pursuant to the VCAA in connection with claims related to the Veteran's first period of active service; in connection with the claim for death pension related to the Veteran's second period of active service; or in connection with death compensation for either period of service. II. The Merits of the Claims The appellant in this case seeks recognition as the Veteran's surviving spouse in order to obtain death benefits including nonservice-connected death pension, death compensation and DIC benefits. If a claimant is established as a surviving spouse, he or she may qualify for pension, death compensation, or DIC, if the marriage to a Veteran occurred before or during the Veteran's service, or after the Veteran's service if certain requirements are met. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.54. Under the regulations, a "spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). A "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death, and: 1) Lived with the veteran continuously from the date of marriage to the date of the veteran's death, except where the separation was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and 2) Has not remarried or has not, since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. Marriage is defined as a marriage valid under the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). A surviving spouse may qualify for pension, compensation, or DIC, if the marriage to the veteran occurred before or during the Veteran's service or, if after the Veteran's separation from service, before the applicable delimiting dates of relevant periods of war. 38 C.F.R. § 3.54(a). For nonservice-connected death pension benefits the surviving spouse must be married to the veteran: 1) One year or more prior to the veteran's death; or 2) For any period of time if a child was born of the marriage, or was born to them before the marriage; or 3) Prior to May 8, 1985 for veterans of the Vietnam era or prior to January 1, 2001 for veterans of the Persian Gulf War. 38 U.S.C.A. § 1541(f); 38 C.F.R. § 3.54(a). For death compensation benefits or DIC benefits under 38 U.S.C.A. § 1310(a), the surviving spouse must be married to the veteran: 1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the veteran's death was incurred or aggravated; or 2) One year or more; or 3) for any period of time if a child was born of the marriage or was born to them before the marriage. 38 C.F.R. § 3.54(b) and (c). Consequently, status as a surviving spouse of the Veteran is a threshold eligibility requirement for DIC, death compensation, and pension benefits. In this case, a certificate from the Marriage License Bureau of the City of New York indicates that the Veteran and appellant were married in October 2004. The evidence of record indicates that the pair remained married until the Veteran's death due to chronic alcoholism with hepatic cirrhosis in February 2005. The evidence of record does not indicate that the parties ever divorced, nor is there any indication that their marriage was invalid due to any legal impediment. Therefore, as the evidence indicates that the Veteran and appellant were legally married from October 2004 until his death in February 2005, the appellant is established as a surviving spouse as defined by 38 C.F.R. § 3.50. With respect to eligibility to entitlement to death pension as a surviving spouse, however, the appellant is not eligible because she married the Veteran less than one year prior to his death in March 2005. Moreover, the evidence of record does not indicate that the two had any children together. Additionally, their marriage did not occur before or during any period of service or until after the delimiting date of May 8, 1985, for the Vietnam War. Their marriage also did not occur until after the most recent delimiting date of January 1, 2001, for the Persian Gulf War. Thus, based on this evidence, the appellant is not eligible as a surviving spouse for death pension for either period of the Veteran's active service. There is no question that the Veteran and the appellant were not married for more than one year prior to his death and did not bear a child together. They entered into marriage many years after service and well after the delimiting date for Vietnam era veterans of May 8, 1985, and well after the delimiting date for Gulf War era veterans of January 1, 2001. There is no allegation or suggestion in the evidence of record disputing these facts. On the basis of the foregoing, the Board must find that the appellant lacks basic eligibility for VA death pension. Next, the Board will consider the appellant's eligibility as a surviving spouse for DIC or death compensation. As previously noted, VA death compensation or DIC may be paid to a surviving spouse, who, with respect to date of marriage could have qualified as a surviving spouse for death compensation under any law administered by VA in effect on December 31, 1957, or who was married to the Veteran: (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death or injury was incurred or aggravated; or (2) one year or more, or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1102; 38 C.F.R. § 3.54(b). The essential facts in this case are not in dispute. For the same reasons as noted above, the appellant was not married to the Veteran for more than a year prior to his death. In addition, the couple did not have any children together. However, unlike the requirements for death pension, eligibility for DIC or death compensation may also be established if the parties were legally married within 15 years of the Veteran's release from the active duty period where the injury or disease which caused the Veteran's death was incurred or aggravated. Thus, the determinative factor in this case for entitlement to death compensation or DIC benefits is whether the Veteran and appellant were married before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death was incurred or aggravated. In this case, the Veteran and appellant were married within 15 years of termination of the Veteran's period of service from December 1990 to June 1991. However, they were not married within 15 years of termination of the Veteran's period of service from January 1968 to August 1970. Therefore, the appellant lacks basic eligibility for death compensation and DIC benefits on the basis of her claimed status as the Veteran's surviving spouse for his first period of active duty from January 1968 to August 1970. Nevertheless, since the appellant and the Veteran were married within 15 years of termination of the Veteran's period of service from December 1990 to June 1991, she is eligible for death compensation and DIC. However, entitlement to death compensation is legally barred because the Veteran died after December 31, 1956. 38 U.S.C.A. § 1121. Therefore, the Board must address the underlying claim of entitlement to service connection for the cause of the Veteran's death only for the purpose of determining entitlement to DIC benefits. This matter is addressed in the REMAND section below. The appellant argues that she is entitled to various VA benefits on the basis of the Veteran's many years of active service and National Guard membership, despite the fact that she was legally married to him for less than one year. She neither alleges, nor does the record show, that they were married for greater than one year. The appellant also did not have a child with the Veteran. Although the Board is sympathetic to the appellant's arguments that she should be recognized as the Veteran's surviving spouse for purposes of gaining eligibility to VA benefits, for the reasons described above, the status sought as the Veteran's surviving spouse is clearly precluded by law, and the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). ORDER Eligibility for pension, DIC or death compensation benefits for disabilities incurred or aggravated by the Veteran's service from January 1968 to August 1970 is not established. Eligibility for death pension benefits based on the Veteran's service from December 1990 to June 1991 is not established. Entitlement to death compensation benefits based on the Veteran's service from January 1968 to August 1970 and from December 1990 to June 1991 is denied. Eligibility for DIC benefits based on the Veteran's service from December 1990 to June 1991 is established. REMAND Additional development is necessary with respect to the remaining issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the Appeals Management Center (AMC)/RO for action as described below. First, VA has not yet provided the appellant adequate notice in support of her claim of entitlement to service connection for the cause of the Veteran's death. When adjudicating a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim for service connection for the cause of the Veteran's death, VCAA 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, 252-53 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. 2009) (unpublished). In this case, the RO provided the appellant VCAA notice by letter dated in January 2006, but the notice does not include the information required under Hupp. Instead, it includes succinct statements indicating that, to support a DIC claim, one must submit evidence showing a Veteran died in service, that service-connected conditions caused or contributed to his death, that he was rated totally disabled due to service-connected conditions for at least 10 years prior to his death, or a condition that contributed to the death was caused by injury or disease that began during service. A remand for more comprehensive notice is thus necessary. Second, VA has not yet provided the appellant adequate assistance in support of the cause of death claim. VA's duty to assist includes assessing whether it is necessary to obtain a medical opinion in support of a claim. When adjudicating a DIC claim, VA is excused from making reasonable efforts to provide assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). In this case, it is possible that a medical opinion would aid the appellant in substantiating her claim. The appellant has submitted the Veteran's death certificate showing that he died from chronic alcoholism with hepatic cirrhosis. The death certificate indicates that an autopsy was performed, but the associated report is not of record. Indeed, no medical records relating to the Veteran's last decades of life have been included in the claims file. Therefore, it is impossible to make a determination as to whether or not the Veteran's alcohol abuse disability, which caused his death, developed secondary to, or was a symptom of, a service-connected disability. No compensation shall be paid for a disability if the disability is the result of a veteran's own willful misconduct or abuse of alcohol or drugs; however, a veteran is not precluded from receiving compensation for an alcohol abuse disability acquired as secondary to, or a symptom of, a veteran's service-connected disability. 38 U.S.C.A. § 1110; see also Allen v. Principi, 237 F.3d 1368, 1375 (Fed. Cir. 2001). On remand, the RO should obtain the autopsy report and all pertinent medical records. Therefore, further development of the evidence is necessary, requiring further investigation. In addition, the duty to assist includes obtaining records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, remand is required in order to fulfill the statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. In particular, send the appellant and her representative a letter that complies with the notification requirements as interpreted by the Court in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The letter must explain, what, if any, information and evidence (medical and lay) not previously provided to VA is necessary to substantiate the assertions advanced by the appellant; the evidence of record concerning her assertions must be taken into account. 2. Obtain, with assistance from the appellant as needed, the autopsy report and all pertinent medical evidence pertaining to the Veteran's hepatic condition. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and her representative (if any) must also be informed of the negative results and be given opportunity to secure the records. 3. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, such as obtaining a medical opinion, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 4. If the benefit sought on appeal remains denied, the appellant and her representative (if any) must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs