Citation Nr: 1334248 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-20 752 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from November 1943 to May 1946, from July 1946 to August 1947, and from October 1948 to August 1952. He died in October 2008. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. In September 2013, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript from that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 his death in October 2008, the Veteran was service connected for traumatic encephalopathy due to a skull fracture, which had been rated at 100 percent since July 2001, a period of less than 10 years prior to his death; the Veteran's 100 percent rating was assigned nearly 50 years after he separated from service; and the Veteran was not a prisoner of war. 2. Clear and unmistakable error has not been alleged with any specific rating decision. CONCLUSION OF LAW Criteria for an award of DIC benefits under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 7105 (West 2002); 38 C.F.R. §§ 3.22, 3.104, 3.105(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Even when a Veteran's service connected disability did not directly cause his death, VA will nevertheless pay DIC benefits to the surviving spouse of a deceased Veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling 1) if the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; 2) if the disability was rated by the VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or 3) if the Veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b). For purposes of this section, "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. At the time of his death in October 2008, the Veteran was service connected for traumatic encephalopathy due to a skull fracture, which had been rated at 100 percent since July 2001, and for stomatitis which was rated as noncompensable. Unfortunately, the criteria for DIC under 38 C.F.R. § 1318 are not met. First, the Veteran's 100 percent rating was not in effect for at least the 10 years prior to his death, as he was rated at 100 percent from 2001 to 2008, a period of approximately seven years; second, he was not rated at 100 percent for approximately 50 years after separating from service, meaning that he was not rated totally disabled continuously from the time of his release from active duty and for at least five years immediately preceding death; and third, there is no evidence even suggesting that the Veteran was ever a prisoner of war. The appellant has also not argued that a clear and unmistakable error (CUE) was made in any VA decision. As such, the evidence does not show that the Veteran has met the statutory requirements for § 1318, and the appellant's claim for DIC under § 1318 is accordingly denied. II. Duties to Notify and Assist Under applicable criteria, VA generally has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Generally, notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, the appellant was not provided a specific pre-adjudicatory letter notifying her of what was necessary to support a DIC claim. The appellant was also not informed that the Veteran had two service connected disabilities at the time of his death. However, these notice failures are ultimately not prejudicial to the appellant, because she and her representative have demonstrated actual knowledge of the several conditions for which the Veteran was service connected at the time of his death, as well as familiarity and general understanding of substantiating this DIC claim based on those previously service-connected conditions. Specifically, an August 2009 letter explained to the appellant what was required for DIC, and the appellant and her representative discussed the Veteran's service connected disabilities at her hearing before the Board, conveying their actual knowledge of his conditions. As such, there is no need for further notification to satisfy the principles of Hupp. Further, neither the appellant, nor her representative, has not alleged any prejudice with respect to notice, as is required, see Shinseki v. Sanders, 129 S. Ct. 1696 (2009), nor with respect to the conduct of the hearing, see Bryant v. Shinseki, 23 Vet. App. 488 (2010). None is found by the Board. In Dela Cruz v. Principi, 15 Vet. App. 143 (2001), the Court held that the enactment of the VCAA does not affect matters on appeal when the question is one limited to statutory interpretation (purely legal questions). See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (no duty to notify a claimant 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 and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As was discussed above, the appellant's claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is being denied because of the lack of legal merit. Therefore, VA had no duty to notify or assist the appellant in conjunction with the adjudication of that issue. ORDER Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is denied. REMAND At her hearing before the Board, the appellant identified several facilities which had reportedly treated the Veteran. Unfortunately, a review of the claims file suggests that either no treatment records had been obtained from the identified facility, or it is unclear whether the obtained records are complete. Specifically, the appellant reported that the Veteran had been treated at a VA medical facility in Oakland, California until 2004; and then was treated at VA medical facilities in New Orleans and Houma, Louisiana until his death in 2008. She also indicated that the Veteran was seen on one occasion at a VA medical facility in Houston. As these records may be relevant to the appellant's appeal, they should be sought. The appellant also indicated that the Veteran had been treated by a private doctor in California, but the doctor had since passed away. The appellant did not specify the name of the doctor, and it appeared that she had not been able to obtain any records from such treatment. However, if the appellant is able to locate any archived records from this treatment, she is welcome to submit them. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records that are not already of record from VA facilities in Oakland, California, Houston, Texas, Houma, Louisiana, and New Orleans, Louisiana. 2. Then, conduct any additional development that logically flows from obtaining the VA treatment records. 3. Finally, readjudicate the appeal. If the claim remains denied, provide the appellant and her representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs