Citation Nr: 1327807 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-05 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1948 to September 1951. He died in March 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present 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, D.C. FINDINGS OF FACT 1. The Veteran was not evaluated as totally disabled as a result of a service-connected disability for 10 continuous years immediately preceding death, rated as totally disabled continuously for a period of no less than five years from the date of discharge from active duty, and was not a former prisoner of war (POW) who died after September 30, 1999. 2. The Veteran had no claims for VA benefits pending at the time of his death in March 2009. CONCLUSIONS OF LAW 1. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22 (2012). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a); 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.119(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held 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 the claim for VA benefits. In the present case, VA provided the appellant with the notice contemplated by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in correspondence dated in April 2009, prior to the initial rating decision issued in May 2009. Such letter informed her that DIC benefits may be paid if the Veteran was receiving, or entitled to receive, VA compensation for a service-connected disability rated totally disabling for at least 10 years immediately before death, for at least 5 years after his release from active duty preceding death, or for at least 1 year before death, if he was a former POW. Such letter further notified the appellant that, in order to be entitled to accrued benefits, the evidence must show that benefits were due the Veteran based on existing ratings, decisions, or evidence in VA's possession at the time of death, but the benefits were not paid before his death, and she is the surviving spouse, child, or dependent parent of the deceased Veteran. The April 2009 letter also informed the appellant of her and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised her of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. With respect to VA's duty to assist the appellant, the facts are not in dispute. In this regard, the issue pertaining to DIC benefits pursuant to 38 U.S.C.A. § 1318 turns on whether the Veteran was evaluated as totally disabled as a result of a service-connected disability for 10 continuous years immediately preceding death, was rated as totally disabled continuously for a period of no less than five years from the date of discharge from active duty, or was a former POW who died after September 30, 1999. Additionally, with regard to the claim of entitlement to accrued benefits, the applicable law and regulations provide that, upon the death of a Veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the Veteran's spouse. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). As there were no claims pending on the date of the Veteran's death, the Board has no obligation, or authority, to obtain new medical evidence in the form of a VA opinion. Likewise, the Board finds that obtaining any new medical evidence in the form of a VA opinion could serve no purpose in advancing the appellant's claim for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318. VA's General Counsel has held that, under 38 U.S.C.A. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim or to assist a claimant in developing evidence to substantiate a claim where undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). As will be explained below, the undisputed facts render the appellant ineligible for DIC benefits under 38 U.S.C.A. § 1318 and accrued benefits. Therefore, the Board finds that, under the holding of VAOPGCPREC 5-2004, there is no duty on VA's part under the provisions of the VCAA and its implementing regulations to further notify or assist the appellant with regard to the issues decided herein. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to legal requirements does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of a result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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 Veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Entitlement to DIC Benefits Pursuant to 38 U.S.C.A. § 1318. 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. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. "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.A. § 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.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. In addition, for the purposes of Section 3.22, "rated by VA as totally disabling" includes total disability ratings based on unemployability. 38 C.F.R. § 3.22. The appellant implicitly contends that the Veteran should have had a total rating at an earlier date, thereby making her eligible for DIC under 38 U.S.C.A. § 1318. No evidence has been submitted to support such contention. In this regard, the record reflects that, at the time of his death in March 2009, the Veteran was service-connected for: posttraumatic stress disorder (PTSD), rated 50 percent disabling effective February 23, 2001; residuals of a shell fragment wound (SFW) of the right thigh and buttock, rated 20 percent disabling effective September 26, 1951; residuals of a SFW of the lower pole of the left testicle, rated 10 percent disabling effective September 26, 1951; and residuals of missile injuries of the legs and of the left hand, both rated as noncompensably disabling effective September 26, 1951. He had a schedular combined disability rating of 60 percent and a TDIU rating effective February 23, 2001. Thus, the evidence does not show that the Veteran was entitled to receive 100 percent disability compensation for the ten-year period immediately preceding his death in March 2009, and he was not receiving such compensation for any of the reasons enumerated in 38 C.F.R. § 3.22(b). Additionally, the Veteran was not rated as totally disabled continuously for a period of no less than five years from the date of discharge from active duty and there is no evidence suggesting that the Veteran was a POW at any time. In fact, records from the Office of the Surgeon General specifically not that the Veteran was not a POW. As such, there is no possibility that the Veteran could have met the requirements of a total disability rating of the required duration at the time of his death. In addition, the Board observes there has been no specific pleading by the appellant of clear and unmistakable error in any prior decision. See Cole v. West, 13 Vet. App. 268 (1999) (specifying pleading requirements in a claim of clear and unmistakable error in a prior decision for purposes of DIC claim under 38 U.S.C.A. § 1318). The appellant has not identified any other permissible basis for granting this claim. A hypothetical theory of entitlement is not applicable because the appellant's claim was filed after January 21, 2000 (inasmuch as the Veteran died in March 2009 and her claim was received in April 2009). The facts of this case are not in dispute and the law is dispositive. Accordingly, the claim of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). III. Entitlement to Accrued Benefits When a Veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death. There is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). The statute concerning accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In this case, the Veteran died in March 2009 and thus such provisions are applicable; however, there is no evidence that the Veteran had a claim for VA benefits pending on the date of his death that had not been finally adjudicated by VA and, thus, there is no claim for which the appellant may be a substitute claimant. Furthermore, there is no basis under which accrued benefits may be granted. In this regard, the Board observes that, a September 2001 rating decision denied increased ratings for the missile injuries of the right thigh and buttock and for the injury of the left testicle, to which the Veteran filed a notice of disagreement in December 2001, and following the issuance of a March 2002 statement of the case, he perfected his appeal by filing a substantive appeal (VA Form) in April 2002. Thereafter, VA Form 21-8940, Application for Increased Compensation Based on Unemployability, was received in April 2002. In a December 2002 rating decision granted service connection for PTSD and assigned an initial disability rating of 50 percent; granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and granted Dependents' Educational Assistance (DEA) benefits, all effective February 23, 2001. In a VA Form 21-4138, Statement in Support of Claim, received in June 2003, the Veteran stated that he was satisfied with his TDIU and withdrew all appeals. No further claims were filed before his death in March 2009. Accordingly, there is no basis under which accrued benefits may be granted. The facts of this case are not in dispute and the law is dispositive. Accordingly, the claim of entitlement to accrued benefits must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. REMAND Although the Board sincerely regrets the additional delay that inevitably will result as a consequence of this remand, the additional development of the claim for service connection for the cause of the Veteran's death is necessary to ensure there is a complete record upon which to adjudicate the claim and to afford her every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the Board finds that a remand is necessary in order to obtain outstanding records. Specifically, a report of an official psychiatric examination in October 2004 shows that following treatment for a low back disorder the Veteran had been unable to work and had been "placed on Social Security benefits." However, records of the Social Security Administration (SSA) have not been obtained. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The appellant alleged in her notice of disagreement that she felt that the Veteran's retained shrapnel in some way contributed to his contracting a rare blood disorder, myelodysplastic syndrome, which was the terminal illness causing his death. In this regard, the death certificate shows that the Veteran died at home and lists the immediate cause of the Veteran's death as GI bleeding but did not list the underlying cause or pathology leading to the Veteran's death. As to this, Dr. S. S. of the Fallon Clinic, Holden Family Practice, stated that the Veteran's primary diagnosis was myelodysplastic syndrome (MDS), the complications of which led to his death. The service treatment records are negative for MDS and it is not shown or contended that MDS manifested until many years after discharge from the Veteran's military service. Myelodysplastic syndrome (MDS) is a disease that is associated with decreased production of blood cells. There is no clear cause for the majority of MDS cases, which is referred to as primary or de novo myelodysplastic syndrome. In some cases, however, MDS results from earlier cancer treatments such as radiation and/or chemotherapy. This type of MDS is called secondary or treatment related MDS, is often seen 3 to 7 years after the exposure, and usually occurs in younger people. Other possible causative agents for MDS include exposure to radiation, cigarette smoke, or toxic chemicals such as benzene. See generally Gale Encyclopedia of Medicine, 4th Ed.; Jacqueline L. Longe (Editor); Database updated June 2012; GALE-MED 1919601159. An April 2001 VA outpatient treatment (VAOPT) record shows that the Veteran had had a transurethral resection of the prostate 2 years earlier. He was followed by a private physician (Dr. B.) for bladder cancer, starting in November 1999. He had had radiation therapy from December 1999 to January 2000; a transurethral resection of a bladder tumor in March 2000; and additional radiation in April 2000 for a recurrence of bladder cancer. VAOPTs also show that the Veteran had received radiation therapy of a laryngeal neoplasm. However, private records from Dr. S. S. of the Fallon Clinic, and the Holden Family Practice, and from Dr. B. who treated the Veteran for bladder cancer are not on file. Therefore, while on remand, the appellant should be requested to identify all VA and non-VA healthcare providers who treated the Veteran for his myelodysplastic syndrome, to include such aforementioned records. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she furnish the names, addresses, and dates of treatment of all VA and non-VA healthcare providers from whom the Veteran received treatment for his myelodysplastic syndrome, to include all records of the Fallon Clinic, Dr. S.S. of the Holden Family Practice, and Dr. B (as referenced in the April 2001 VA record). After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all treatment records referred to by the appellant. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding records, the AOJ should review the full record and conduct any additionally indicated development, to include obtaining any medical opinions, deemed necessary to decide his claim. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs