Citation Nr: 1323552	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  11-23 284	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an effective date prior to April 3, 2008 for chronic lymphocytic leukemia, small cell lymphoma for accrued benefits purposes.

2.  Entitlement to an effective date prior to April 3, 2008 for special monthly compensation (SMC) benefits, based on housebound status, for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Appellant and T.H.


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel


INTRODUCTION

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).

The Veteran served on active duty from October 1966 to October 1970.  He died in April 2008.  The Appellant is his surviving spouse and is seeking benefits based on claims submitted prior to his death.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In April 2013, the Veteran appeared at a Travel Board hearing before the undersigned.  A transcript of that hearing is in the claims file.

The issue of entitlement to an effective date earlier than April 3, 2008 for SMC based on housebound status for accrued benefits purposes is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.  The Appellant will be notified if any further action on her part is required.




FINDINGS OF FACT

1.  The Veteran originally sought service connection for chronic lymphocytic leukemia in an application received April 19, 2004; the claim was denied because there was no evidence of an event in service which resulted in the disability.

2.  In February 2005 VA received the Veteran's service personnel records showing his dates of assignment at MCAS El Toro.

3.  The Veteran applied to reopen his claim of service connection for chronic lymphocytic leukemia in April 2008; he died of the disability shortly thereafter.

4.  The Appellant continued the claim of service connection on the principle of accrued benefits; it was subsequently granted in September 2010 based on evidence of the Veteran's exposure to hazardous chemicals while stationed at MCAS El Toro; the assigned effective date was April 3, 2008.


CONCLUSION OF LAW

The criteria for an effective date of April 19, 2004 for the grant of service connection for chronic lymphocytic leukemia have been met.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400, 3.1000 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  The VCAA applies to the instant claim, as far as the duty to assist is concerned.  However, inasmuch as this decision grants the benefit sought on appeal, there is no reason to belabor the impact of the VCAA on this matter; any notice error as to this claim is harmless.

Accrued Benefits Claims

Although a Veteran's claim terminates with that Veteran's death, a qualified survivor may carry on, to a limited extent, the deceased Veteran's claim by submitting a timely claim for accrued benefits.  See 38 U.S.C.A. § 5121 (West 2002).  While an accrued benefits claim is separate from the Veteran's claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an Appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law.  See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996).  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 Board notes that the appellant is pursuing the matters at issue in the capacity of accrued benefits; she has not been substituted into the Veteran's claim.

In this instance, the Veteran had filed a claim to reopen a previously denied claim of service connection for chronic lymphocytic leukemia just prior to his death.  The Appellant filed a claim of service connection for the cause of death and continued the pending claim as one for accrued benefits.  In September 2010, the claim of service connection for chronic lymphocytic leukemia was granted and an effective date of April 2008 was assigned, based on the date of the filing of the claim to reopen.  The Appellant asserts that an early effective date is warranted, specifically one of April 2004, the date of the original claim of service connection.

Establishing Effective Dates

Except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor.  38 U.S.C.A. § 5110(a); see 38 C.F.R. § 3.400 (2012).  

In this instance, because the Appellant's claim is brought under the accrued benefits provision, she is entitled to the same outcome as the Veteran would be entitled to in a decision on the merits.  The claim of service connection for chronic lymphocytic leukemia had been originally raised and denied in 2004.  As such, the April 2008 claim would be considered a claim to reopen a previously denied claim.

Legal Standard for Reopening a Claim

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  In addition, at any time after VA issues a decision on a claim, if VA receives official service department records that had not been associated with the claims file when the claim was originally adjudicated, the claim will be reconsidered.  38 C.F.R. § 3.156(c).  The types of records covered by this provision include service records related to the claimed in-service event, injury, or disease.  38 C.F.R. § 3.156(c)(i).  An award made based at least in part on such new records is effective the date entitlement arose or date VA received the previously denied claim.  38 C.F.R. § 3.156(c)(3); see also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). 

In this instance, the record shows that, after the denial of service connection for chronic lymphocytic leukemia in 2004, VA received service department records in conjunction with a separate claim.  These records, received in February 2005, showed the Veteran's various units and dates of assignment in service, including the information that he was stationed at MCAS El Toro from February 1967 to May 1967 and from July 1969 to October 1970.  Notably, when service connection was granted for chronic lymphocytic leukemia under the Appellant's accrued benefits claim, the basis for the award was that the disability resulted from exposure to hazardous chemicals during the period he was stationed at MCAS El Toro.  As such, the service personnel records received in February 2005, after the prior final denial, provided at least part of the basis for the subsequent grant of benefits.  Thus, the provisions of 38 C.F.R. § 3.156(c) apply and the proper effective date for the grant of service connection for chronic lymphocytic leukemia is that of the original claim, April 19, 2004.

The Board has reviewed the evidence of record, and is satisfied that entitlement to the benefit sought had arisen by the time of the April 2004 claim.


ORDER

Entitlement to an effective date of April 19, 2004, for an award of service connection for chronic lymphocytic leukemia, for accrued benefits purposes, is granted, subject to the laws and provisions governing the award of monetary benefits.


REMAND

In addition to an earlier effective date for the award of service connection, the Appellant also seeks an earlier effective date for the award of SMC based on housebound status, which was also set at April 3, 2008 by the rating decision on appeal.  The RO awarded SMC based on the schedular criteria being met, that is, on the Veteran having one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher as of April 2008.  

While the Board has found that the proper effective date for service connection for chronic lymphocytic leukemia is April 19, 2004, it is the proper purview of the RO/AMC to determine the proper disability rating assignable for the period between April 2004 and April 2008.  As a consequence, the issue of whether entitlement to SMC between April 2004 and April 2008 is established is inextricably intertwined with the above determination.
 
Accordingly, this matter is REMANDED for the following actions:
	
1. The AMC/RO should adjudicate the matter of the proper disability rating assignable for chronic lymphocytic leukemia between April 19, 2004 and April 3, 2008.

2. Then, the AMC/RO should readjudicate the matter of the proper effective date for the award of SMC based on housebound status or need for aid and attendance.

3. If the decision remains adverse to the Appellant, then provide her and her representative a supplemental statement of the case and return the case to the Board.

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 case 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).


____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).

Department of Veterans Affairs