Citation Nr: 1331180 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-06 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318. 3. Entitlement to nonservice-connected death pension benefits. 4. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney At Law ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1963 to December 1965. The appellant is his surviving spouse. This case comes before the Board of Veterans Appeals (Board) on appeal of a July 2006 Administrative Decision, which denied entitlement to DIC, nonservice-connected death pension benefits and accrued benefits. 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 February 2006, due to freshwater drowning with hypothermia. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran did not have a service-connected disability rated at 100 percent for 10 years prior to his death, nor was he entitled to a total disability evaluation on the basis of individual unemployability for 10 years prior to his death, nor was he a former prisoner of war who died after September 30, 1999. 4. The appellant's annual income exceeds the maximum annual income limit for receipt of payment for nonservice-connected death pension benefits for a surviving spouse with two dependants. 5. At the time of the Veteran's death in February 2006, he had no pending claims, and there were no due but unpaid benefits to which the Veteran was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.22, 3.159 (2012). 2. The criteria for entitlement to payment of death pension benefits are not met. 38 U.S.C.A. § 1521(a), (b) (West 2002); 38 C.F.R. §§ 3.3(a)(3), 3.23, 3.271, 3.272, 3.273 (2012). 3. The criteria for accrued benefits are not 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the July 2006 denial letter and subsequently issued May 2007 and January 2009 letters, the RO notified the appellant of the evidence needed to substantiate her claims. The letters also satisfied the second and third elements of the duty to notify by informing the appellant that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5103(a) requires that compliant VCAA notice, in the context of Death Indemnity Compensation (DIC) claims, requires (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, VCAA notice is not required for the claims for DIC benefits, nonservice-connected death pension or accrued benefits because the issues presented involve a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Nevertheless, the April 2008 and January 2009 letters included notice that complied with the Court's decision in Hupp. The letters did not explicitly tell the appellant what disabilities service connection had been established for during the Veteran's lifetime, but the Board notes that the record reflects that the Veteran was not service-connected for any disability at the time of his death. The appellant should, however, have been put on notice as to what was required. In addition, she had a meaningful opportunity to participate in the adjudication of her claims, inasmuch as she had many months after the notices to submit additional evidence and argument. There was a timing deficiency in that the May 2007 and January 2009 letters were sent after the initial adjudication of the claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as the claims are being denied, no effective date or rating is being set. The delayed notice on these elements, therefore, does not deprive the appellant of a meaningful opportunity to participate in the adjudication of the claims. See McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran's service treatment records and all other pertinent available records have been obtained in this case. Neither the appellant nor her attorney has identified any outstanding evidence, to include medical records that could be obtained to substantiate the denied claims. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were not prejudicial to the appellant. DIC under 38 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318, VA benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death were service-connected, even though the Veteran died of nonservice-connected causes, if two conditions are met. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. First, the Veteran's death must not be the result of his or her own willful misconduct. 38 C.F.R. § 3.22(a)(1). The Board need not address this first element because the record does not establish the second requirement -- namely, that at the time of death, certain requirements for total disability compensation must have been met. 38 C.F.R. § 3.22(a)(2). There are three ways in which the total disability requirement can be met: the Veteran was receiving, or was entitled to receive, compensation for a service-connected disability that (1) was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (2) was rated totally disabling continuously since the Veteran's release from active duty, and for a period of not less than five years immediately preceding death; or (3) was 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 (POW) who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22(a)(2). In this case, the Veteran was not service-connected for any disability at the time of his death in February 2006, or at any other time during his lifetime. As discussed further below, he filed claims for service connection for nerves and diabetes in April 2005, which were denied by the RO in October 2005. The Veteran never appealed the denial, and the decision became final. Furthermore, he never filed another claim for service connection prior to his death in February 2006. As the Veteran did not have any service-connected disabilities that were continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of his separation from service, the Board finds that the "totally disabling" requirement under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 has not been met. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. Accordingly, the appellants' claim under 38 U.S.C.A. § 1318 must be denied for lack of legal merit. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). Nonservice-connected Death Pension Death benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). Basic entitlement exists if: (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3(b)(4). The phrase period of war is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam Era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2(f)(i). In addition to qualifying Veterans' service, basic eligibility for nonservice-connected death pension also hinges on whether a surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3(b)(4)(iii). As noted above, the Veteran was not service-connected for any disability during his lifetime. However, the record reflects that he served on active duty in the Navy from July 1963 to December 1965 (at least 90 days), during a period of war, specifically, the Vietnam Era. Therefore, the Board finds that the initial service requirements are satisfied with respect to the appellant's nonservice-connected death pension claim, and the appellant, his surviving spouse, is eligible for nonservice-connected death pension benefits provided she meets the required income and net worth requirements noted above. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. The surviving spouse of a Veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.23, 3.273 (2012). Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271 (2012). For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The maximum annual pension rate is adjusted from year to year. The appellant's claim was received in January 2007. The income limit for a surviving spouse with two dependants is currently $11,093.00. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. Effective in December 2006, five percent of the MAPR was $366; effective in December 2007 it was $375; and effective in December 2008 it was $397. The record reflects that the Veteran reported Social Security benefits of $10,344.00 for each child and $16,044.00 retirement income for herself. The record also reflects that the appellant received a Social Security Death Benefit of $255.00 for a 12-month period. Thus, the appellant's annual family income has been well above the income limits for a surviving spouse with two dependants of any year during the appellate period. Based on the evidence of record, the Board finds that the appellant's annual family income exceeds the statutory limits during the period in question, and therefore, she is not entitled to VA nonservice-connected death pension benefits. While the Board recognizes the Veteran's honorable wartime service, expresses sympathy for the loss of the Veteran, and can certainly empathize with any financial difficulty the appellant is experiencing, the appellant is not entitled to payment of VA death pension benefits because her income and net worth exceed the statutory limits. The Board is bound by the laws enacted by Congress, the regulations of the Department, and the instructions of the Secretary. 38 U.S.C.A. § 7104(c). In this case, the law passed by Congress specifically prohibits the payment of VA death pension benefits when the appellant's income and net worth exceed certain levels. The Court has held that where the law and not the evidence is dispositive, the claim should be denied due to the lack of entitlement under the law. Because the appellant's income and net worth exceed the statutory limits, she is not legally entitled to payment of pension benefits, regardless of the Veteran's honorable service. Thus, the appellant's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accrued Benefits Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2012); 38 C.F.R. 3.1000 (a) (2012). Moreover, an "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c) (2012). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C.A. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). After review of the evidence, the Board finds that accrued benefits are not warranted. Initially, the Board notes that the appellant filed a claim for VA death benefits, including accrued benefits, in May 2006, just a few months after the Veteran's death in February 2006. Therefore, the claim was filed in a timely manner. However, the evidence demonstrates that the Veteran did not have any claims pending at the time of his death. In this regard, the record reflects that the Veteran filed claims for entitlement to service connection for nerves and diabetes in April 2005, and both claims were denied in an October 2005 RO rating decision. The Veteran never appealed this decision or filed another claim, and the claims file does not contain any pending but unadjudicated claims from the Veteran. Moreover, there is no evidence of due but unpaid monetary benefits, and the Veteran did not receive service-connected disability compensation during his lifetime. As such, there is no entitlement to accrued benefits, and the claim must be denied. ORDER Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. REMAND Upon review of the evidence of record, the Board finds that further development is necessary prior to a final decision on the appellant's remaining claim. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. I t is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2012); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The certificate of death indicates that the Veteran died in February 2006. The cause of death was certified to be freshwater drowning with hypothermia. Service connection was not in effect for any disability during the Veteran's lifetime. Thus, here, a favorable decision is possible with evidence that the immediate cause of the Veteran's death or the significant condition contributing to death was incurred in, or aggravated by, service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). The appellant contends that the Veteran's drowning was the result of suicide, which the Veteran committed as a result of mental problems, which he developed during active military duty. Service treatment records show that the Veteran was hospitalized from September 1965 to October 1965 for observation and treatment due to a depressive state. He was diagnosed at that time with situational maladjustment, acute, moderate, manifested by complex romantic involvement, undependable judgment, impulsive behavior under relatively minor stress; minimal external precipitating stress; marked predisposition; impairment mild. Private treatment records from Wise County Behavioral Healthcare show that in 2005, the Veteran was hospitalized for psychiatric illness and multiple reported suicide attempts. During his hospitalization, he reported that he had been depressed all his life, and that his first major episode was during active duty in the Navy, at the age of 19. He also reported that his depression had been chronic, with variance in severity for 40 years. He complained at that time, of feeling progressively worse primarily due to marital separation, lack of employment, financial difficulties, and ongoing physical problems he was having. He was diagnosed with severe major depressive disorder. Treatment records from the Mountain Home VA Medical Center dated from 2004 to 2005 show treatment for anxiety. The evidence of record shows that the Veteran suffered from depression and that he had a history of suicide attempts. The appellant maintains that the Veteran's death in February 2006 by drowning was his final suicide attempt, which proved to be successful. The RO, in its September 2009 statement of the case, even noted that the Veteran's death by drowning was an "apparent suicide." However, there is no evidence currently of record which gives any specific details on the circumstances surrounding the Veteran's death by drowning in February 2006. The only information available at this time is the appellant's report that the Veteran demonstrated seemingly irrational behavior, in that he took off his coat and shoes and walked into a lake in February (middle of winter), for no apparent reason, and was later found drowned in the lake, and the death certificate, indicating that the Veteran's cause of death was as noted, freshwater drowning with hypothermia. There is no police report, autopsy report, or other related medical records currently associated with the claims file, that could give the Board more information on the Veteran's actions and subsequent death that day. The Board finds that a full copy of any police report and/or autopsy report related to the Veteran's death would be beneficial in addressing the appellant's contentions and, therefore, on remand, the appellant should be requested to either provide a full copy of the police report and/or autopsy report to VA or to provide VA with a release for it to obtain the reports. The Board also notes that the Veteran, prior to his death, and the appellant both reported that the Veteran suffered from symptoms of mental illness, including depression for at least 40 years. However, there are no treatment records associated with the claims file, VA or private, dated prior to 2004. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the appellant provide the names and addresses of any and all health care providers who have treated the Veteran for any psychiatric disorder, including depressive disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. If the RO is unable to obtain any of the identified records, such should be so noted in the record and the appellant should be so informed so that she may have the opportunity to obtain those records on her own behalf. The RO should also obtain any outstanding VA medical records, showing treatment for the Veteran, dated prior to 2004. 2. The RO should obtain any police report or other investigative report and/or autopsy report generated as a result of the Veteran's death. 3. After completion of the above development, if any information obtained suggests that the Veteran's death by drowning was due to suicide, the claims file should be forwarded to an appropriate medical professional to assess the nature and etiology of his diagnosed depressive disorder, and to obtain an opinion regarding the cause of the Veteran's death. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. The examiner is first asked to express an opinion as to whether the Veteran's diagnosed depressive disorder was at least as likely as not (i.e., 50 percent or greater possibility) related to his active military service. The examiner is advised that as noted above, the Veteran was briefly hospitalized for a depressive episode in service, and he was diagnosed with major depressive disorder during private treatment in 2005. If the examiner answers affirmatively, the examiner is asked to express an opinion as to whether the depressive disorder at least as likely as not (i.e., 50 percent or greater possibility) caused or contributed to his cause of death (i.e., drowning due to suicide). In this regard, the depressive disorder, if related to the Veteran's military service, must have either caused death or contributed substantially or materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death. 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, readjudicate the appellant's remaining claim for service connection for the cause of the Veteran's death, based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs