Citation Nr: 1414982 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 10-37 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to November 1971, with service in the Republic of Vietnam from October 1970 to October 1971. He died on January [redacted], 2007. The appellant is the Veteran's spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant presented testimony at a Board hearing in December 2013, and a transcript of the hearing is associated with the Veteran's virtual claims folder. At the hearing, the undersigned Veterans Law Judge granted the appellant's request that the record be held open for 60 days to permit her time to submit additional evidence. In correspondence received at the Board in January 2014, the appellant again requested an abeyance period for submission of additional evidence/ in support of the claim-for 30 days. The claim was held in abeyance until after the requested time period ended. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA and VBMS systems to ensure total review of the evidence. The issue of entitlement to service connection for cause of 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. FINDING OF FACT The Veteran was not evaluated as being totally disabled as a result of service-connected disability for 10 continuous years immediately preceding death; was not rated as being totally disabled continuously for a period of no less than five years from the date of discharge from active duty; and he also was not a former prisoner of war. CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As will be discussed in further detail below, the appellant's claim for entitlement to DIC benefits is being denied solely because of a lack of entitlement under the law. Accordingly, the Board has decided the appeal on the current record without any further consideration of the VCAA. II. DIC benefits pursuant to 38 U.S.C.A. § 1318 VA law provides that if a Veteran's death is not determined to be service connected, a surviving spouse may still be entitled to DIC benefits. Under 38 U.S.C.A. § 1318(a) benefits are payable to the surviving spouse of a deceased Veteran in the same manner as if the death were service connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was: 1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; 2) 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 3) 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(b) (West 2002); 38 C.F.R. § 3.22 (2013). "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 were 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. Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2013). In this case, the record shows that at the time of the Veteran's death in January 2007, service connection was not in effect for any disability. Although the Veteran had applied to reopen his claim service-connection for several disabilities in October 2006, his claims were denied in April 2008 on an accrued benefits basis. It is clear that the Veteran was not receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death, nor was he receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling continuously since his release from active duty and for at least 5 years immediately preceding death. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, it has not been shown nor has it been alleged that the Veteran was "entitled to receive" compensation for a service-connected disability rated totally disabling under any of the circumstances listed under 38 C.F.R. § 3.22(b) for the appropriate time requirements. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court 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. For the reasons discussed above, the appellant is not legally entitled to DIC benefits under 38 U.S.C.A. § 1318 and her claim must be denied. ORDER Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. REMAND The Veteran served in the Republic of Vietnam from October 1970 to October 1971 and therefore, for purposes of this remand, is presumed to have been exposed to Agent Orange. He died in January 2007 and his death certificate shows the immediate cause of death was lung cancer with renal cell carcinoma as a significant condition contributing to death, but not resulting in the underlying cause. The appellant contends that the Veteran died from lung cancer, which is one of the diseases for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). Renal cell carcinoma is not one of the diseases for which presumptive service connection will be granted. 38 C.F.R. § 3.309(e). A November 2006 treatment note from Dr. E.L. at Central Alabama Oncology indicates that "[t]here has been some incongruity regarding whether or not the pulmonary process is metastatic from [the Veteran's] renal cell carcinoma or whether this is a separate primary." The presumption of service connection for a cancer of an organ subject to the presumption for exposure to Agent Orange is rebutted where the primary cancer is not of that organ but of a different type (not subject to presumptive service connection) that has metastasized to that organ. See Darby v. Brown, 10 Vet. App. 243 (1997). Given the diagnoses of both lung cancer and renal cell carcinoma and some ambiguity as to whether the primary cancer was lung cancer or that the primary cancer was renal cell carcinoma that had metastasized to the lungs, the Board finds that a remand is necessary to obtain a medical opinion. See Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (in considering cause of death claims, VA must ask, under 38 U.S.C.A. § 5103A(a), whether a medical opinion is 'necessary to substantiate the claim,' or 'no reasonable possibility exists that such assistance would aid in substantiating the claim'). The Veteran's death certificate indicates that he died at St. Vincent's Medical Center (St. Vincent's). Further, at the December 2013 Board hearing, the appellant indicated that the Veteran was admitted to St. Vincent's two days before he died. There are no medical records from St. Vincent's associated with the claims folder. Further, in October 2006, the Veteran indicated that he had been treated by Drs. Clark and Graggory. The RO has attempted to obtain these records previously without success. On remand, the RO should again attempt to obtain the records, provided that the appellant authorizes the release of these records, and inform her pursuant to 38 C.F.R. § 3.159(e), if the records are not obtained. On the Veteran's January 1999 application for compensation, he indicated that he was receiving disability benefits from the Social Security Administration (SSA). However, there are no SSA records associated with the claims folder. See Hayes v. Brown, 9 Vet. App. 67 (1996) (VA's duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination). As cases are generally reviewed once every 3 years to determine whether there is continuing entitlement to the benefits, unless review is waived by the Commissioner of the SSA pursuant to 42 U.S.C.A. §§ 421(i)(1), (2) and 1383b, SSA may have information relevant to the current claim. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she provide or authorize the release of the Veteran's records from Drs. Clark and Graggory, and the St. Vincent's Medical Center, as well as any other records, not already of record, that are relevant to her claim. 2. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records, including medical records, underlying the adjudication (and any subsequent determinations on continued entitlement) for the Veteran's disability benefits. 3. If, after making reasonable efforts to obtain named non-federal records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the appellant and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the appellant that she is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 4. Then, obtain a VA medical opinion to determine if the Veteran's death was caused by a disability incurred in service. The claims folder, including a copy of this remand, must be made available to the clinician. After reviewing the file, the clinician should address whether the Veteran's lung cancer metastasized from his renal cell carcinoma or whether his lung cancer was a separately developed cancer. Please provide a complete explanation for the opinion. If the clinician finds that the Veteran's lung cancer metastasized from his renal cell carcinoma, the clinician should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's renal cell carcinoma was related to his military service, including presumed exposure to Agent Orange. Please provide a complete explanation for the opinion. 5. Then, conduct any additional development that is deemed warranted and readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a SSOC. After the appellant has been given the applicable time to respond, the claims should be returned to the Board for further review. 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 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. 2013). ______________________________________________ S.S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs