Citation Nr: 1324520	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  04-16 033	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE


Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. 


REPRESENTATION

Appellant represented by:	Polly Murphy, Attorney at Law



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. Wasik, Counsel


INTRODUCTION

The Veteran served on active duty from April 1970 to June 1971.  The Veteran died in December 1998.  The appellant is the Veteran's widow.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Veterans Law Judge who conducts a hearing shall participate in making the final determination of the claim.  38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.707 (2012).  Where testimony has been given before two different Veterans Law Judges, a panel decision of not less than three members of the Board must be issued.  See 38 U.S.C.A. § 7102 (West 2002).  The appellant testified at a hearing conducted by the undersigned Judge Flowers in September 2005 and also testified before the undersigned Judge Gallagher in a September 2009 hearing.  Thus a panel of three judges have signed this decision below.  

The issue of entitlement to service connection for the cause of the Veteran's death was previously before the Board in December 2012 when it was remanded to afford the appellant a requested hearing..  In January 2013, the appellant informed VA that she no longer desired to attend a hearing.  

The issue of entitlement to service connection for the cause of the Veteran's death to include as due to herbicide exposure is addressed in a separate Board decision.  


FINDING OF FACT

A separate Board decision promulgated concurrently with this decision grants service connection for the cause of the Veteran's death which is a complete grant of benefits sought on appeal.


CONCLUSION OF LAW

The matter of entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death, is dismissed due to the absence of a controversy at issue.  38 U.S.C.A. § 7105(d) (West 2002).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).  As set out below, the issue certified for appeal by the RO has already been fully resolved in the appellant's favor.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, 159 F. 3d. 534, 549 (Fed. Cir. 1998).

The appellant has submitted two claims of entitlement to service connection for the cause of the Veteran's death wherein she advanced two different theories of entitlement.  One theory is that the ultimate cause of the Veteran's death was the result of exposure to herbicides while the Veteran served on active duty in Vietnam.  The other theory of entitlement, the one this decision addresses, is that the Veteran's death was due to carelessness, negligence or lack of proper care on the part of VA in rendering health care.  

In a separate decision which is being promulgated by the Board simultaneously with the current decision, the Board has determined that service connection is warranted for the cause of the Veteran's death based on exposure to herbicides.  This is a complete grant of the benefit sought on appeal in this decision (service connection for the cause of the Veteran's death).  Furthermore, the date of receipt of claim which initiated the other Board decision is prior to the date in which the appellant initiated the current action.  Thus the Board's grant of service connection in the other decision is a greater benefit than that sough in this decision.  The Board finds that there is no "controversy" or "justiciable" claim as regards the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death currently before the Board.  As the matter is being resolved in the appellant's favor, on these facts, the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death must dismissed.  See 38 U.S.C.A. § 7105(d) (West 2002).  See also Schoen v. Brown, 6 Vet. App. 456, 457 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death, is dismissed without prejudice.


		
KATHLEEN K. GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals


		
F. JUDGE FLOWERS
	Veterans Law Judge, Board of Veterans' Appeals


		
DENNIS F. CHIAPPETTA
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs