Citation Nr: 1321553 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 09-46 569A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 the provisions of 38 U.S.C.A. § 1318 (West 2002). 3. Entitlement to accrued benefits. 4. Entitlement to non-service-connected death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to May 1981. He died in March 1983; the appellant is his widow. This matter came to the Board of Veterans' Appeals (Board) from an April 2009 rating action of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the appellant was notified of the time and place of a Board hearing she had requested in connection with her appeal. See 38 C.F.R. § 20.704(b) (2012). She failed to report for the hearing, however, and no request for postponement was ever received. Accordingly, the Board will process this appeal as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in March 1983, and the immediate cause of death was a construction accident in which he sustained severe chest and head injuries when a front-end loader fell on him. 2. At the time of the Veteran's death, he was not service connected for any disability. 3. The construction accident that caused the Veteran's death is not in any way related to his time in service. 4. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. 5. The Veteran was not evaluated as totally disabled from service-connected disabilities for 10 continuous years immediately preceding death, nor was he rated totally disabled continuously for a period of not less than 5 years from the date of discharge, nor was he a prisoner of war who died after September 30, 1999. 6. The appellant did not file a claim for accrued benefits within one year of the Veteran's death. 7. The Veteran had verified active military service from October 1979 to May 1981. 8. The Veteran did not serve in the active military, naval, or air service during a period of war. 9. The Veteran was not disabled from an injury or disease during active service. CONCLUSIONS OF LAW 1. The Veteran's death was not caused by, or substantially or materially contributed to by, a disability incurred in or aggravated by his active duty service. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). 2. The criteria for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2002); 38 C.F.R. § 3.22 (2012). 3. The claim for entitlement to accrued benefits must be denied as a matter of law. 38 U.S.C.A. § 1101, 1110, 1131, 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 4. The Veteran's service does not meet the basic eligibility requirements for VA non-service-connected death pension benefits. 38 U.S.C.A. §§ 101, 1501, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.203, 3.314 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a), VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In August 2010 and May 2011, the appellant was provided notice letters pursuant to the VCAA, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and Hupp v. Nicholson, 21 Vet. App. 342 (2007), which applies to claims for dependency and indemnity compensation benefits. In the August 2010 and May 2011 letters, the appellant was notified of what information and evidence is needed to substantiate her claims, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. The notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim. The notice also complied with Hupp, in that it included a statement indicating that the Veteran was not service connected for any disability at the time of his death; an explanation of the evidence and information required to substantiate a DIC claim; and, an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless. Although the notice provided to the appellant in March 2010 and February 2011 was not given prior to the first AOJ adjudication of the claims, the notice was provided subsequent to the readjudication of the claims via August 2010 and May 2011 supplemental statements of the case, after which the appellant was given opportunity to respond. The contents of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and the case law discussed hereinabove. Likewise, the appellant has not alleged any prejudice as a result of an untimely or deficient VCAA notification, nor has any been shown. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and his death certificate, as well as the marriage certificate documenting the marriage between the Veteran and the appellant. With respect to the issue of entitlement to service connection for the cause of the Veteran's death, the Board acknowledges that no VA medical opinion was obtained but finds that none was necessary. This is so because there is no evidence of pertinent disability in service, and no evidence suggesting a relationship between his service and death. To the contrary, as discussed below, the appellant herself has indicated that she does not believe the Veteran's death to have been related to service, nor is there any evidence whatsoever in the file to suggest such an etiological relationship. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Charles v. Principi, 16 Vet. App. 370 (2002). The duty to assist is not invoked, even under McLendon or Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). There is otherwise no indication of relevant, outstanding records which would support the appellant's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the appellant have been fulfilled with respect to the issues on appeal. I. Service Connection for the Cause of the Veteran's Death The RO has construed the appellant's claim for benefits as a claim for entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran died in March 1983, and the Certificate of Death reflects that the immediate cause of death was severe head and chest injuries due to a construction accident in which he was crushed by a front-end loader. No other contributory causes were identified. The Board notes that service connection was not in effect for any disability during the Veteran's lifetime, nor had he sought service connection for any disorder and been denied. The Board notes as an initial matter that on her December 2008 application for benefits, the appellant responded "No" when asked if she was claiming that the Veteran's cause of death was due to service. However the RO construed her application for benefits as a claim for service connection for the cause of the Veteran's death, and the appellant has perfected an appeal of the issue, rendering it ripe for the Board's adjudication. The Board notes that the Veteran was killed in a post-service job-related accident in which he was crushed by heavy machinery. There is no indication in the record that the Veteran's service in any way led to the construction accident, nor has the appellant made any statement indicating her belief as to such an occurrence. Based on the record, the Board must conclude that the clear preponderance of the evidence is against a finding that the Veteran's fatal construction accident was in any way related to his active service. In so finding, the Board notes that the appellant has not contended that a relationship exists between the Veteran's cause of death and his service, nor has she submitted any evidence attesting to such a theory. As the conditions that caused or contributed to the Veteran's death were not shown in service, and the record contains no suggestion of a causal link between his death and active service, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. The Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C.A. § 5107(b). II. Entitlement to DIC under 38 U.S.C.A. § 1318 DIC may be awarded to a surviving spouse upon the service-connected death of the veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a). If, as here, the Veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased Veteran" in the same manner as if the death were service-connected. A "deceased Veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability or disabilities rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22. The service-connected disability or disabilities must have been either continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least 5 years from the date of the veteran's separation from service. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22. Benefits are also payable if the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b)(3). Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106. In addition, 38 C.F.R. § 3.22 also restricts the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. The appellant does not contend that the Veteran was service-connected for a disability or disabilities rated as totally disabling, or that he was otherwise in receipt of a total disability rating for a period of 10 years, or for a period of five years from his discharge from service. Nor does she contend that he was a prisoner-of-war who died after September 30, 1999. Further, as noted above, the appellant has not contended that the Veteran's death was related in some way to his period of service. As discussed in the previous section, the Board has determined that service connection for the cause of the Veteran's death is not warranted. Thus, in this case, the Board finds that the criteria for DIC benefits under the provisions of 38 U.S.C.A. § 1318 are not met. At no point during the Veteran's lifetime was he rated totally disabled. As the Veteran had no service-connected disabilities rated at 100 percent for the 10 years prior to his death, was not continuously rated as totally disabled for five years after service and leading up to his death, the appellant's claim must be denied under 38 U.S.C.A. § 1318. III. Entitlement to Accrued Benefits Among the requirements for accrued benefits is that the claim for accrued benefits be filed within one year after the date of death of the individual with respect to whom such benefits are sought. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). The Veteran died in March 1983. In December 2008, the appellant filed an "Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse," which was construed as a claim for accrued benefits. However, this filing occurred more than twenty years after the Veteran's death. As the appellant missed the statutory deadline for filing her claim for accrued benefits, the pertinent facts in this case are not in dispute, and the law is dispositive. The appellant did not file a claim for accrued benefits within one year of the Veteran's death; she is not eligible for accrued benefits in any case. The Veteran's death certificate, received in December 2008, shows he died in March 1983. The claim was received by VA in December 2008. Any accrued benefits claim is barred as untimely. As a result, the claim is denied. IV. Entitlement to Non-Service-Connected Death Pension Benefits The appellant seeks non-service-connected death pension benefits based on her deceased husband's military service. In order to qualify for the benefits sought, the appellant must establish that her deceased husband had qualifying service. Controlling statutory law provides that only certain military service is considered qualifying service for such benefits. The appellant claims VA benefits as the surviving spouse of a veteran. The law authorizes the payment of non-service-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. The Secretary shall pay pension for non-service-connected disability or death for service to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in 38 U.S.C.A. § 1521(j) or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service connected disability. 38 U.S.C.A. § 1541. In order to establish basic eligibility for VA death pension benefits to the surviving spouse of a veteran, the veteran must have had the requisite service. 38 U.S.C.A. § 1541(a); 38 C.F.R. §§ 3.3, 3.314(b). In pertinent part, eligibility for pension may be established by a veteran having active service of either (1) 90 days or more during a period of war; (2) a period of 90 consecutive days or more when such period began or ended during a period of war; (3) or an aggregate of 90 days or more in two or more separate periods of service during more than one war; or (4) served in active military service and was discharged or released from such wartime service by reason of disability adjudged service-connected, or at time of discharge had a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). The term "period of war" is currently defined by statute to mean the Spanish-American War (from April 21, 1898 to July 4, 1902), the Mexican border period (from May 9, 1916 to April 5, 1917), World War I (April 6, 1917 to November 11, 1918), World War II (December 7, 1941 to December 31, 1946), the Korean conflict (June 27, 1950 to January 31, 1955), the Vietnam era (February 28, 1961 to May 7, 1975 for veterans serving in Vietnam, and from August 5, 1964 to May 7, 1975 for all other cases), and the Persian Gulf War (from August 2, 1990 and ending on a date yet to be prescribed). See 38 U.S.C.A. § 101; 38 C.F.R. § 3.2. The Veteran's official DD Form 214, Certificate of Release or Discharge from Active Duty, which has been associated with the claims file, confirms that the Veteran had active duty from October 5, 1979, to May 15, 1981. Official service department records are binding on VA for purpose of establishing service in the U.S. Armed Forces. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The service record clearly shows that the Veteran did not have active military service during a period of war. Thus, in this case, the Veteran's service does not meet the threshold criteria for basic eligibility for non-service-connected pension benefits. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. Thus, the appellant does not meet the basic eligibility for non-service-connected death pension benefits. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the Veteran's service did not meet the criteria described, the appellant does not meet the basic eligibility requirements for non-service-connected death pension, and the claim must be denied based upon a lack of entitlement under the law. 38 U.S.C.A. §§ 101, 106(c), 1521(j); 38 C.F.R. §§ 3.2, 3.3(a)(3), 3.203; Mason, 16 Vet. App. at 132. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. Entitlement to accrued benefits is denied. Entitlement to non-service-connected death pension benefits is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs