Citation Nr: 1326611 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-13 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 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. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran had active service in the US Army from February 1967 to February 1969. He did not serve in the Republic of Vietnam. The appellant is his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. 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. The Veteran died in August 2008; the immediate cause of the Veteran's death was listed as sepsis syndrome due to or as a consequence of coagulopathy due to or as a consequence of respiratory failure, due to or as a consequence of severe metabolic acidosis; significant conditions listed as contributing to death were end stage renal disease, end stage liver disease, and type 2 diabetes mellitus 2. At the time of the Veteran's death, service connection was in effect for history of skin fungus with tinea rash, folliculitis, and recurrent itching (60 percent effective from June 30, 2005); and osteoarthritis of the fingers, right hand injury (20 percent effective from July 15, 2004). 3. At the time of the Veteran's death, his combined evaluation was 70 percent from June 30, 2005. A total disability evaluation based on individual unemployability was awarded effective from June 30, 2005. 4. In October 2008, VA received the appellant's application for DIC benefits. 5. At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service- connected disability that was rated totally disabling by a schedular or unemployability rating for a period of ten years immediately preceding his death. 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(a) (2) (i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under VCAA 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In connection with the DIC claim, the appellant has been notified of the reasons for the denials of the claim for DIC pursuant to 38 U.S.C.A. § 1318 and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant with regard to this claim. As explained below, the undisputed facts reflect that this claim lacks legal merit. As the law, and not the facts, is dispositive of these claims, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable where law, not factual evidence, is dispositive). Moreover, in the circumstances of this case, where there is no legal basis for eligibility for DIC benefits under 38 U.S.C.A. § 1318, a remand for additional development would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Finally, since the RO has provided the appellant with all information relevant to the legal basis for the denial of the claim for DIC pursuant to 38 U.S.C.A. § 1318 the Board finds that there is no prejudice in proceeding with adjudication of the claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Legal Criteria and Analysis When a veteran dies, not as the result of his own willful misconduct, and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability, and the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or the disability was continuously rated totally disabling for a period of not less than 5 years from the date of such veteran's discharge or other release from active duty, then VA shall pay DIC benefits to the surviving spouse in the same manner as if the veteran's death was service-connected. 38 U.S.C.A. § 1318 (2012). Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) the veteran's death was not the result of his or her own willful misconduct, and (2) at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) rated by VA as totally disabling 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. "Entitled to receive" means that at the time of death, the veteran had 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. 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 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. 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22. The Board notes that there have been a number of court decisions in recent years. Clarification has been provided by decisions from the United States Court of Appeals for the Federal Circuit (Federal Circuit). In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) (NOVA I), the Federal Circuit addressed a challenge to the validity of the amended 38 C.F.R. § 3.22. Initially, the Federal Circuit found that VA's amendment of 38 C.F.R. § 3.22 constituted an interpretive rule that did no more than interpret the requirements of 38 U.S.C.A. § 1318 and clarified VA's earlier interpretation of the statute. NOVA I, 260 F.3d at 1376-77. Upon consideration of 38 U.S.C.A. § 1318, the Federal Circuit found that the statutory language was ambiguous as to whether a "hypothetical" claim was allowed. Id. at 1377. It noted that 38 U.S.C.A. § 1311(a), which also has "entitled to receive" language, as interpreted in Hix (citation omitted), was virtually identical to 38 U.S.C.A. § 1318, but that VA interpreted them differently. Id. at 1379. Moreover, it found that the pertinent regulations, 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106, were in conflict with respect to interpreting 38 U.S.C.A. §§ 1311(a) and 1318. Id. The Federal Circuit remanded the case for VA to undertake expedited rulemaking to explain the rationale for interpreting the statutes differently or to resolve the conflict between 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106. On April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations under 38 U.S.C.A. § 1311(a) on the question as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit. See 67 Fed. Reg. 16,309-16,317 (April 5, 2002). In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373, 1377 (Fed. Cir. 2003) (NOVA II), after reviewing its holding in NOVA I, the Federal Circuit observed that VA had determined that the "entitled to receive" language of 38 U.S.C.A. § 1311(a) and 38 U.S.C.A. § 1318 should be interpreted in the same way and that 38 C.F.R. § 3.22 provided the correct interpretation. The Federal Circuit also held that VA provided a permissible basis and sufficient explanation for its interpretation of the statutes as a bar to the filing of new claims posthumously by the veteran's survivor, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening-"hypothetical entitlement" claims. Id. at 1379-80. Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after a veteran's death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). In this case, the Veteran died in August and the appellant's claim was filed in October 2008. As such, these events occurred after VA's January 2000 amendment of 38 C.F.R. § 3.22-the implementing regulation for 38 U.S.C.A. § 1318. The Board has carefully reviewed the record and notes that the appellant has not alleged CUE in any prior decision. Moreover, the Board notes that at the time of his death the Veteran was service connected for the following conditions: 1. History of skin fungus with tinea rash, folliculitis, and recurrent itching (60 percent effective from June 30, 2005); and 2. Osteoarthritis of the fingers, right hand injury (20 percent effective from July 15, 2004). His combined service connected disability was evaluation was 70 percent from June 30, 2005. A total disability evaluation based on individual unemployability was awarded effective from June 30, 2005. The record shows that the Veteran had no service-connected disability or disabilities rated as totally disabling for at least 10 years prior to his death. While the evidence shows that he was in receipt of a total evaluation due to his unemployability, this evaluation had been in effect only since 2005, which was 3 years prior to his death. As such, the Veteran was not rated as totally disabled for a period of at least 10 years immediately preceeding his death. Additionally, the record shows no indication, lay or otherwise, that the Veteran was a POW. In light of the above discussion, the Board concludes that the appellant's claim for DIC under 38 U.S.C.A. § 1318 must be denied because the Veteran did not have a service- connected disability that was continuously rated as totally disabling for a period of 10 or more years immediately preceding his death. See Tarver v. Shinseki, 557 F.3d 131 (2009). Entitlement to these benefits must therefore be denied as a matter of law. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. REMAND The appellant seeks to establish service connection for the cause of the Veteran's death. She argues that his death was due to or a consequence of conditions caused by the Veteran's in-service exposure to "chemical toxins/defoliants." See Notice of Disagreement dated June 2010. She noted that he served in the Panama Canal Zone and that her husband told her he was exposed to Agent Orange. She further noted that his service treatment records confirm that he was "continuously sick from his stomach and skin." The appellant also argued that the Veteran had diabetes mellitus, which contributed to his death, due to Agent Orange exposure. Prior to his death, the Veteran testified in May 2005 that he was exposed to herbicides while on active in the Panama Canal Zone for a period of 11 months. The record shows that the RO denied service connection for diabetes mellitus to include as secondary to Agent Orange exposure and a liver condition to include hepatitis C. The Veteran perfected an appeal, but later withdrew his appeal of the claims. It is noted that the Agent Orange claim was denied because the exposure to Agent Orange had not been established. In this case, the Board observes that both the Veteran (prior to his death) and the appellant subsequent to the Veteran's death have argued that the Veteran had disability due to Agent Orange exposure in service. The Veteran's Agent Orange claims were previously denied because he had not established exposure to Agent Orange in service. Upon review of the record, the Board concludes that additional evidentiary development is necessary. The VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n, addresses the verification of exposure to herbicide agents in locations other than Vietnam or Korea. The RO is supposed to request a herbicide exposure verification from the Department of Defense (DOD) for the timeframe delineated by a claimant. In this case, the record shows neither a request to DOD nor a request for information from the Defense Personnel Records Information Retrieval System (DPRIS). Also, it is the policy of the VA Compensation and Pension Service for cases to be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) where the claimed herbicide exposure location or dates were not on the DOD list or on the M21-1MR Korean DMZ list or where the evidence does not otherwise confirm exposure, in order to corroborate the Veteran's claimed exposure unless the claim was inherently incredible or clearly lacked merit. The record shows no indication that a referral was made to JSRRC. Based on the foregoing, the Board finds that the RO must attempt to verify the Veteran's alleged herbicide exposure in Panama following the procedures provided by the C&P Service in Manual M21-1MR. 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 claimant to develop the facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should verify the Veteran's dates of service in Panama and follow M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n. or its equivalent to request a herbicide exposure verification from the Department of Defense (DOD) for the Veteran's period of active duty in Panama. If DOD does not confirm herbicide exposure, refer the Veteran's pertinent information to the U.S. Army and Joint Services Records Research Center (JSRRC) with a request for verification of exposure to herbicides. If exposure to herbicides is confirmed, take appropriate action. If exposure to herbicides is not confirmed, the RO or AMC should notify the appellant of the negative reply. 2. Only if exposure to chemical agents or defoliants to include Agent Orange in service is verified, as outlined above, the RO or AMC should obtain a medical expert opinion from a physician with appropriate expertise on whether this exposure caused, or substantially or materially contributed, to the Veteran's death. The claims files must be reviewed along with a copy of any pertinent records located in the Veteran's Virtual VA electronic claims file. A complete rationale for all opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. The RO should undertake any other development it determines to be warranted and ensure substantial compliance with the terms of this remand. 4. After the development requested above has been completed to the extent possible, the RO should readjudicate the matter on appeal. If the benefit sought on appeal is not granted to the appellant's satisfaction, she should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the matters are returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs