Citation Nr: 1334798 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-25 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for non-Hodgkin's Lymphoma (NHL) associated with herbicide exposure, for purposes of accrued benefits. 2. Entitlement to service connection for syncope, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to March 1975. He served in Vietnam and received numerous decorations, including the Bronze Star Medal and Combat Infantry Badge. The Veteran died in December 2008 and the appellants are his son and daughter. This case comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for NHL and syncope in May 2008. 2. The RO issued a December 19, 2008 rating decision granting entitlement to service connection for NHL and denying entitlement to service connection for syncope. 3. Earlier in December 2008, prior to issuance of the December 19, 2008 rating decision, the Veteran died. 4. The appellants are over 18 years of age, did not become permanently incapable of self-support prior to attaining 18 years of age, and are not between the ages of 18 years and 23 years and pursuing a course of instruction at an approved educational institution. CONCLUSION OF LAW Neither of the appellants falls within the definition of "child" in the regulation providing for entitlement to benefits due and unpaid upon the death of a beneficiary, and they therefore lack legal entitlement to such accrued benefits as a matter of law. 38 U.S.C.A. §§ 101, 5121 (West 2002); 38 C.F.R. §§ 3.57, 3.356, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claims is wholly dependent on interpretation of the applicable laws and regulations pertaining to accrued benefits, in particular the definition of "child." The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). Periodic monetary benefits to which a veteran was entitled at the time of death, under existing ratings or decisions, or based on evidence in the file at the date of death (i.e., accrued benefits) are to be paid on the death of the veteran to the first listed survivor of the following: surviving spouse, children (in equal shares), and dependent parents. In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C.A. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). A veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision in order for a surviving spouse to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In May 2008, the Veteran filed a claim for entitlement to service connection for NHL and syncope. As the Veteran served in Vietnam he was presumed exposed to Agent Orange and the RO granted entitlement to NHL, a disease presumed service connected in veterans exposed to Agent Orange, on a presumptive basis. In that same rating decision, the RO denied entitlement to service connection for syncope. The decision was dated December 19, 2008 and the notification letter was dated December 23, 2008. Earlier in December 2008, however, prior to issuance of the December 19, 2008 rating decision, the Veteran died. The claim was therefore pending at the time of the Veteran's death. See 38 C.F.R. § 3.160(c) (defining pending claim as an application that has not been finally adjudicated). Based on the above, and regardless of the fact that the RO issued a rating decision granting service connection for NHL and denying service connection for syncope, an eligible party could argue that a claim was pending for service connection for these disabilities and he was entitled to monetary benefits based on the evidence in the file at the time of death, i.e., entitled to service connection for these disabilities for purposes of accrued benefits. In this case, the Veteran's son, noting that the Veteran and his mother were divorced, filed a claim for accrued benefits on behalf of himself and his sister as children of the Veteran. He noted that he had received a check for approximately $15,000 based on the RO's December 2008 rating decision granting entitlement to service connection for NHL and that he was returning the check. The claim was filed within a year of the Veteran's death and was therefore timely. The RO granted burial benefits and entitlement to service connection for the cause of the Veteran's death. The RO also noted that it could only reimburse adult children such as the appellants for last sickness and burial expenses. The issue in this case is whether entitlement to accrued benefits is warranted for monetary benefits based on the claims for service connection for NHL and syncope pending at the time of the Veteran's death. For the following reasons, the Board finds that it is not. 38 C.F.R. § 3.1000(d) provides that the term "child" is defined as in 38 C.F.R. § 3.57. That definition is specific and limited. 38 C.F.R. § 3.57 contains a two part definition of child. Each part must be met in order to qualify as a child under the regulation, as indicated by the conjunction "and" between them. First, the person must be a legitimate child or, if legally adopted or a step child, meet certain other criteria. The appellants meet this criterion, as they are the legitimate children of the Veteran. Second, the person must be under the age of 18, or must have become permanently incapable of self-support prior to the age of 18, or must be between the ages of 18 and 23 pursuing a course of instruction at a VA-approved educational institution. There is no contention or evidence that either of the appellants meets the second criterion. The application form indicates that the sister was born in 1965 and the brother was born in 1970. They both therefore reached the age of 23 well before the Veteran filed the claim that was pending at the time of his death. As the appellants do not meet the criteria to be considered the Veteran's children under the applicable regulation for purposes of accrued benefits, they are not entitled to such benefits as a matter of law. The appellants have made various arguments during the appeal as to why accrued benefits should nevertheless be granted. It has been argued that entitlement was warranted under the Nehmer rules. Nehmer v. United States Veterans Administration, 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F Supp 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer et al v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Under 38 C.F.R. § 3.816, a "Nehmer class member" includes a Vietnam Veteran who has a covered herbicide disease, such as NHL. 38 C.F.R. § 3.816(a)(1). The regulation applies where a claim for service connection was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. Id. The regulation establishing a presumption of service connection for NHL was added in October 1990. See Claims Based on Service in Vietnam, 55 Fed. Reg. 43123 (Oct. 26, 1990). It was made retroactively effective August 5, 1964. Id. The Veteran does not appear to be a Nehmer class member, but, even if he were, or if he were otherwise entitled to an earlier effective date based on a liberalizing VA law or issue, see 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114, this would not entitle the appellants to the accrued benefits they seek because they do not meet the definition of child rendering them eligible to receive such benefits. In addition, the appellants argued that VA took longer than necessary to decide the Veteran's claim, that the Veteran was in desperate need of the compensation to which he was entitled due to his physical and financial situation, and that the Veteran's experiences in Vietnam resulted in psychiatric disability which in turn caused alcoholism, which itself was a main reason for the Veteran's divorce and many of his other problems. The Board is extremely sympathetic to these arguments, as the Veteran was a distinguished combat veteran who died shortly before receipt of the compensation to which he was entitled. The Board is bound, however, by the laws and regulations that apply to veterans claims. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. §§ 19.5, 20.101(a) (2013). Those laws and regulations require that, in order to qualify for accrued benefits based on a claim pending at the time of death, the appellants would have to fall within the definition of "child" in 38 C.F.R. § 3.57(a)(1), as specified in 38 C.F.R. § 3.1000(a)(1)(ii). As the appellants do not contend, and the evidence does not reflect, that either appellant falls within this definition, entitlement to the benefits sought must, unfortunately, be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for NHL associated with herbicide exposure, for purposes of accrued benefits, is denied. Entitlement to service connection for syncope, for purposes of accrued benefits, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs