Citation Nr: 1323706 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-49 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to January 1968. He died in October 2008. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Travel Board hearing was scheduled for May 13, 2013, and the appellant failed to appear. The appellant has not filed a motion for a new hearing. Accordingly, the case will be processed as though the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of Veteran's death in October 2008, service connection was in effect for cervicothoracic degenerative joint disease, degenerative disc disease, with a 60 percent evaluation and a total disability evaluation had been in effect, based solely on this disability, since April 16, 2001. 2. The Veteran died in October 2008, and the appellant filed her claim for DIC benefits in October 2008. 3. The Veteran was not rated as totally disabled for a period of at least 5 years from the date of his discharge or release from active duty or for at least 10 years preceding his death, and he was not a prisoner of war. CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset of this decision, the Board finds that the provisions of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), are not applicable to the appellant's claim of entitlement to DIC under 38 U.S.C.A. § 1318 currently on appeal because resolution of this claim turns solely on a matter of law and not on the underlying facts or development thereof. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Consequently, the Board is not required to address the Agency of Original Jurisdiction's (AOJ) efforts to comply with the VCAA with respect to the issue here on appeal. It is noted that the relevant facts in this case are not in dispute. There is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). In any event, all known and available records relevant to the issue on appeal have been obtained and associated with the claims file. The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran's death was not service-connected, provided that the veteran was in receipt of or "entitled to receive" compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least 5 years from the date of his discharge or release from active duty, for 10 or more years immediately preceding his death or for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. 38 C.F.R. § 3.22. For purposes of this section, "entitled to receive" means that at the time of death, the 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.A. § 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 in a VA rating 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.A. § 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service- connected disability rating; or (7) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22. At the outset, the Board notes that pursuant to Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), it need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating. In Rodriguez, the Federal Circuit Court determined that the theory of hypothetical entitlement need not be applied. Id. In this case, there was no claim pending for DIC benefits claimed under the provisions of 38 U.S.C.A. § 1318 on January 21, 2000, as the appellant filed her claim for DIC benefits in October 2008. Hypothetical entitlement is not for application in this case. The only possible ways of prevailing on a claim for benefits under 38 U.S.C.A. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision that were not previously considered by VA provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits have not been met. The Veteran plainly did not meet the durational requirement for a total disability rating in existence during his lifetime under 38 U.S.C.A. § 1318. The Veteran died in October 2008. At the time of his death, service connection was in effect for cervicothoracic degenerative joint disease, degenerative disc disease, with a 60 percent evaluation, and a total disability evaluation had been in effect, based solely on this disability, since April 16, 2001, the date the Veteran filed a claim for a TDIU. It is noted by the Board that the award of a TDIU effective April 16, 2001, arguably satisfies the total rating requirement. See Bradley v. Peake, 22 Vet. App. 280 (2008). Nevertheless, the award of a TDIU was in effect for about 7 1/2 years. Thus, the Veteran was not rated as totally disabled for a period of at least 5 years from the date of his discharge or release from active duty, or for at least 10 years preceding his death. There is likewise no indication that he was a prisoner of war. As noted, one possible way of prevailing on a claim for benefits under 38 U.S.C.A. § 1318 is to show that such requirements would have been met, but for clear and unmistakable error in a previous decision. For there to be a valid claim of CUE in a prior final decision, either the correct facts as they were known at the time in question were not before the adjudicator or the legal provisions effective at that time were improperly applied; conversely, a mere difference of opinion in the outcome of the prior adjudication, including insofar as how the evidence was weighed or evaluated, or a failure in the "duty to assist," are not grounds for a finding of CUE. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Luallen v. Brown, 8 Vet. App. 92 (1995). In Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002), the Federal Circuit noted that any claim of CUE must be pled with specificity. The appellant has made no pleading of CUE. For the foregoing reasons, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318. In fact, in a case such as this, where the law and not the evidence is dispositive, the claim should be denied and the appeal to the Board terminated because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 is denied. REMAND In furtherance of assisting the appellant to substantiate her claim for service connection of the cause of the Veteran's death, the RO obtained records dated contemporaneously to the Veteran's death from the Northwest Texas Healthcare System. A review of these records documents that about a week prior to his admission to this facility he received treatment at a VA clinic for a cough and cold. Notably, the late Veteran's Certificate of Death references pneumonia. A review of the claims file, including the Virtual VA electronic records system, discloses that the latest VA records are dated in August 1999, although there are records of VA examinations dated thereafter. Thus, it appears that there are potentially relevant outstanding VA records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA must attempt to obtain any VA records not currently associated with the claims file, particularly any dated from approximately August 1999 and on, and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after approximately August 1999. Perform any and all follow-up as necessary, and document negative results. 2. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If any benefit sought on appeal is not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs