Citation Nr: 1337559 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-35 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from October 1963 to July 1966. The Veteran died in October 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2009, when this matter was remanded to permit the RO to adjudicate a separate pending claim that was inextricably intertwined with this appeal. In June 2009, a Travel Board hearing was held in this matter before a Veterans Law Judge who is no longer employed by the Board; a transcript of the hearing is associated with the record. In September 2013, the appellant was sent a letter advising her of her right to another hearing before the Veterans' Law Judge who would decide her case, and explaining that if she did not respond within 30 days VA would assume she did not desire another hearing. She has not requested a new Board hearing. The December 2009 Board remand summarized additional pertinent details of the procedural history of this case. The Board notes that a September 2006 rating decision denied service connection for the cause of the Veteran's death and granted basic eligibility to Dependents' Educational Assistance. The appellant, through her representative, submitted a November 2006 statement indicating she disagreed with the September 2006 rating decision that denied DIC benefits under 38 U.S.C.A. § 1318. A May 2007 RO letter clarified that the September 2006 rating decision did not address DIC benefits under 38 U.S.C.A. § 1318; therefore, the November 2006 statement could not be accepted as a notice of disagreement with the September 2006 rating decision. Instead, the RO indicated that it would interpret the November 2006 statement as a claim for entitlement to DIC benefits under 38 U.S.C.A. § 1318. Consequently, the July 2007 rating decision on appeal (denying DIC benefits under 38 U.S.C.A. § 1318) was issued. As the appellant properly appealed this decision and no other rating decision, the only issue currently before the Board on appeal is that which is listed on page 1. FINDING OF FACT At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW). CONCLUSION OF LAW The legal requirements for establishing entitlement to DIC under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2013); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board has considered whether the provisions of the VCAA apply in this matter. The Board finds that because the determination in this matter is strictly limited to statutory interpretation, the provisions of the VCAA do not apply. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA 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). Moreover, the United States Court of Appeals for Veterans Claims (CAVC or Court) has held that a failure to comply with the notice requirement of the VCAA is not prejudicial to the claimant if, based on the facts alleged, no entitlement exists. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). The July 2007 decision letter included a copy of the July 2007 rating decision that advised the appellant of the legal requirements for DIC under 38 U.S.C.A. § 1318 and explained that the facts in this case do not meet the requirements. Additionally, in accordance with the Board's December 2009 remand directives, a February 2010 letter to the appellant further specified the pertinent legal requirements for the benefit sought. As no reasonable possibility exists that further notice or assistance would aid in substantiating the appellant's claim for DIC under 38 U.S.C.A. § 1318, any deficiencies of VCAA notice or assistance in that matter are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in June 2009, the presiding VLJ indicated that the hearing would focus on the issue of entitlement to DIC under 38 U.S.C.A. § 1318. Notably, no reasonable possibility exists that further notice or assistance would aid in substantiating the appellant's claim for DIC under 38 U.S.C.A. § 1318. The appeal is being decided based on application of the law to undisputed facts; it is not a matter wherein overlooked evidence would change the outcome. Accordingly, the Board finds the second prong of Bryant is moot in this case. The appellant was assisted at the hearing by an accredited representative. The hearing focused on the elements necessary to substantiate the claim, particularly upon identifying the appellant's intertwined CUE contention which the Board recognized and appropriately referred to the RO in the December 2009 remand of this appeal. Neither the representative nor the appellant has suggested any deficiency in the conduct of the hearing; indeed, the appellant was offered a new Board hearing in September 2013, but did not respond. Therefore, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. The Board also finds that there has been substantial compliance with the instructions of the December 2009 Board remand. In this regard, a February 2010 letter provided the notice directed by the remand, a December 2010 rating decision adjudicated the inextricably intertwined CUE claim, and the December 2010 cover letter in the notification mailed to the appellant provided notice of her appellate rights in accordance with the remand instructions. The necessary steps were complete prior to the RO readjudicating the claim on appeal. Legal Criteria, Factual Background, and Analysis Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service- connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service- connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or was rated 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) and died after September 30, 1999. 38 U.S.C.A. § 1318. The facts of this case are not in dispute. The Veteran was not an Ex-POW. His service-connected disabilities were rated totally disabling (with the grant of a TDIU) effective from April 3, 2002. Since he died in October 2005, he had received compensation for a total rating for less than 10 years prior to his death, and had not been rated totally disabled since his discharge from service (as that was in July 1966). Thus, the legal criteria for DIC benefits under 38 U.S.C.A. § 1318 are not met, and the appellant's claim for this benefit must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant does not argue that the legal criteria for DIC benefits under 38 U.S.C.A. § 1318 are currently met, but rather argues that they would have been met had the RO assigned a more appropriate effective for the grant of service connection for hearing loss. At the June 2009 Travel Board hearing, the appellant claimed that VA committed CUE in the April 2004 rating decision that assigned the effective date of February 4, 2002, for the grant of service connection for bilateral hearing loss. During his lifetime, the Veteran established service connection for bilateral hearing loss (rated 80 percent from April 3, 2002), left maxillary sinusitis (rated 0 percent from August 17, 1988 and 30 percent from June 15, 2000), and tinnitus (rated 10 percent from April 3, 2002). He was also awarded a total rating based on individual unemployability due to service connected disabilities (TDIU) from April 3, 2002. Historically, service connection for bilateral hearing loss was denied in a December 1988 RO rating decision. The Veteran appealed the denial to the Board. The Board denied service connection for bilateral hearing loss in a May 1990 decision. The Veteran did not appeal the Board's May 1990 decision to the United States Court of Appeals for Veterans Claims, and the Board's May 1990 decision became final by operation of law. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. (The Board observes that the December 2009 Board remand mistakenly indicated that the Veteran did not appeal the December 1988 rating decision; the Veteran did appeal the December 1988 denial, and the matter was addressed by a May 1990 Board decision.) The Veteran filed subsequent claims to reopen the claim of service connection for bilateral hearing loss. Reopening of the claim was denied by rating decisions in April 2000 (with regard to the right ear) and in June 2002. (The December 2009 Board remand mistakenly referred to an October 2000 rating decision; the correct date of the rating decision was in April 2000.) The Veteran did not appeal the April 2000 rating decision; therefore, it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. However, he perfected an appeal of the June 2002 rating decision denying reopening of the service connection claim. When the case was before the Board in April 2004, the Board reopened and granted the claim of service connection for bilateral hearing loss. The April 2004 rating decision implementing the Board's decision assigned a 50 percent rating, effective February 4, 2002 (the date that the RO found the claim to reopen was received by VA). In his May 2004 notice of disagreement, the Veteran appealed the April 2004 rating decision's assignment of the 50 percent rating as well as the effective date assigned. In a January 2005 rating decision, the RO increased the rating for bilateral hearing loss to 80 percent, and made it effective April 3, 2002. The RO indicated that the assignment of the February 4, 2002 effective date in the April 2004 rating decision was error, as the claim to reopen was actually received on April 3, 2002, and not on February 4, 2002, as the April 2004 rating decision had indicated. The January 2005 rating decision also granted a TDIU rating. In the rating decision, the RO addressed the Veteran's January 2005 statement, in which he indicated, following discussion with the Decision Review Officer, that the grant of service connection for bilateral hearing loss disability and the award of TDIU satisfied his appeal. The January 2005 rating decision indicates that it represents a grant of the benefit sought on appeal, and that the Veteran's notice of disagreement was withdrawn. He did not appeal the January 2005 rating decision. The RO's January 2005 decision assigned an effective date of April 3, 2002 for the Veteran's TDIU. The January 2005 decision became final as it was not appealed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. To overcome finality, the appellant must file a claim of CUE concerning a rating decision determination. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision as free- standing claims for earlier effective dates vitiate the rule of finality). The appellant's contention, essentially, is that the RO erred in assigning the effective date for the grant of service connection for bilateral hearing loss. She argues that the effective date for the grant of service connection for bilateral hearing loss should have been in 1988 (when he filed his original claim of service connection for hearing loss). Had the effective date for service connection been made in 1988, the Veteran would have been eligible to file for entitlement to TDIU at that time. As his combined disability rating for his three service-connected disabilities at the time service connection was granted for his bilateral hearing loss (in the April 2004 rating decision giving effect to the April 2004 Board decision) was 70 percent, he met the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. Had TDIU been granted in approximately 1988, he would have been in receipt of TDIU for approximately 17 years at the time of his death in October 2005. This would make his surviving spouse eligible for DIC benefits under 38 U.S.C.A. § 1318. In sum, the appellant argues that but for CUE in the assignment of February 4, 2002 as the effective date for the grant of service connection for bilateral hearing loss in the April 2004 rating decision, which was later corrected to April 3, 2002 in the January 2005 rating decision, the Veteran would have been eligible for TDIU for the 10 years immediately preceding his death. In the December 2009 Board remand, the Board found that the appellant had raised a CUE claim that was inextricably intertwined with the issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, the Board found that the CUE issue must be addressed before the Board could adjudicate the issue on appeal. The Board notes that the December 2009 Board remand recognized that the appellant raised a claim of CUE concerning the April 2004 RO rating decision that assigned an effective date and did not direct the RO to consider any claim of CUE with any prior decision. Notably, the appellant's June 2009 presentation at the Board hearing suggests she may also believe that the denial of the original 1988 claim for service connection for hearing loss contained CUE. The original 1988 claim was first denied by the RO in a December 1988 rating decision. However, the claim was ultimately appealed and addressed by a Board decision in May 1990. The May 1990 Board decision is final, and subject to revision only by Motion of CUE or Motion for Reconsideration filed at the Board. See 38 U.S.C.A. §§ 7104, 7111; 38 C.F.R. §§ 20.1100, 20.1104(a)(1), 20.1400. The Board explains this matter to ensure that the appellant understands how to properly further pursue the benefit sought, if she so wishes. The May 1990 Board decision denying service connection for hearing loss is final, subsumed any prior RO rating decisions on the matter, and is a legal bar to a claim of CUE in the prior RO decisions. Such bar may only be removed by a prevailing motion of CUE in the Board decision or a prevailing motion for Reconsideration of the Board decision (both made directly to the Board). See 38 C.F.R. §§ 20.1000, 20.1001, 20.1400, 20.1404. Such motion has not been filed. The allegation of CUE in the April 2004 RO rating decision (including as this decision was revised in the January 2005 RO rating decision) was, at the direction of the Board's December 2009 remand, adjudicated by the RO in December 2010. The December 2010 RO rating decision found that the determination of the effective date for award of service connection for bilateral hearing loss, which was based upon the date of the receipt of the claim to reopen the claim, did not contain CUE. In accordance with the directives of the December 2009 remand, the RO provided the appellant with notice of her appellate rights in connection with the December 2010 denial of her CUE claim. She did not appeal the decision, and the December 2010 RO rating decision denying the claim of CUE is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Where (as here) the law and not the evidence is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, (1994). Accordingly, as the Veteran was not a POW and was not in receipt of, or entitled to receive, compensation for at least 10 years prior to his death, the appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318. ORDER The appeal seeking entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs