Citation Nr: 1418471 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 11-28 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellant's December 2010 notice of disagreement includes disagreement with the December 2010 denial of entitlement to accrued benefits, and, if so, whether the appellant is entitled to such benefits. REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to September 1955. He died in April 2007. The appellant is his surviving spouse; she is past age 75. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that the appellant had not submitted a timely notice of disagreement with a December 2007 rating decision which, in pertinent part, denied entitlement to accrued benefits. Most recently, the appellant testified by videoconference before the undersigned in May 2012; the hearing transcript is associated with the claims file. FINDINGS OF FACT 1. The appellant's December 2007 notice of disagreement, interpreted in the context of the communications to her, may be construed as a disagreement with the December 2007 denial of accrued benefits. 2. The Board's March 2010 grant of service connection for the cause of the Veteran's death establishes that the evidence of record at the time of the Veteran's death was sufficient to establish the Veteran's entitlement to service connection for a cervical spine disorder. CONCLUSION OF LAW The appellant is entitled to accrued benefits based on a claim for service connection of a spine disorder that was pending at the time of the Veteran's death in 2007. 38 U.S.C.A. §§ 5121A, 5101 (West 2002 & Supp. 2013); 38 U.S.C.A. §§ 5101, 5121 (West 2002 & Supp. 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In 2004, the Veteran sought service connection for a spine disorder, to include a cervical spine disorder. The Veteran disagreed with denial of that claim, and, in January 2007, both the Veteran and the appellant testified before the Board at a videoconference. Their testimony was that the Veteran had injured his back in service in 1955, while setting up a machine gun, and was hospitalized. A few weeks after that accident, the Veteran was discharged from service due to his spinal injury. A January 2007 written medical opinion identified that the Veteran had an old odontoid (cervical spine) fracture. The Veteran and the appellant testified before the Board at a January 2007 videoconference. The claim was Remanded by the Board for additional development. In May 2007, the Veteran underwent correction of craniocervical instability due to an "old C1-C2 cervical fracture." The Veteran's claim for service connection for a spine disorder, to include residuals of a cervical spine injury, was pending development on Remand when the Veteran died of complications of the May 2007 cervical spine surgery, according to the death certificate. The appellant sought benefits the month after the Veteran's death, using VA Form 534, entitled, "Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a surviving spouse or child (to include death compensation if applicable." In her cover letter, the appellant stated, "I am requesting DIC." VA is required to process a claim on this form as a claim for any applicable death benefit, to include DIC, death pension, accrued benefits, or death compensation. In December 2007, the RO issued a rating decision which addressed one issue, "service connection for cause of death" and denied that claim. The cover letter stated, in the first paragraph, "We have made a decision on your claim for death benefits, received July 16, 2007." The cover letter advised the appellant that her claim for DIC, death pension, and accrued benefits was denied. As to accrued benefits, the RO stated that "[a]n accrued benefit is any money we owe the Veteran at the time of death. We can't approve accrued benefits because VA didn't owe the veteran any money." The appellant submitted a December 2007 statement. That statement reads, "Notice of disagreement with the VA Regional Office decision for my claim for DIC dated Dec 18 2007 . . . . My late husband was in [ ] Medical Center for surgery to correct a spinal injury he received while on active duty and complications from that surgery were a contributing factor in his death." In response, the RO issued a statement of the case (SOC) which addressed one issue, "[s]ervice connection for the cause of death." Although special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. In the present case, and without finding fault with the RO, the Board liberally construes the appellant's December 2007 statement as an NOD to each of the issues addressed in the rating decision, to include accrued benefits. The rating decision could be construed as requiring disagreement only with one issue, the denial of service connection for the cause of the Veteran's death, since all of the three denied benefits (DIC, pension, and accrued benefits) were denied for one reason, denial of service connection for the cause of the Veteran's death. The appellant's December 2007 communication has been interpreted as a disagreement with denial of service connection for the cause of the Veteran's death, but the RO limited the application of the disagreement with the cause of the Veteran's death to one issue, DIC. The appellant's reference in the December 2007 statement to the claim submitted by the Veteran prior to his death for service connection for spinal injury "he received while on active duty" could certainly be construed as a disagreement with the denial of accrued benefits. Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007); Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). In particular, given the reference to the claim the Veteran filed before his death, a disagreement with the denial of accrued benefits is inferred, even though, in the prior paragraph, the appellant referenced "DIC" benefits. In part, the RO based its decision that there was no NOD as to the accrued benefits claim on the distinction between accrued benefits and other benefits for which a claimant may be eligible after a Veteran's death. The RO also noted that, although 38 U.S.C.A. § 5101(b)(1) states that a claim for DIC is automatically a claim for accrued benefits, that statute does not require that a disagreement with denial of DIC benefits be considered also a disagreement with a denial of accrued benefits. However, both the Federal Circuit and the Court of Appeals for Veterans Claims have noted that the statutory changes made by Congress when it enacted 38 U.S.C.A. § 5121A to amend 38 U.S.C.A. § 5121 have affected analysis of the distinctions between the processing of a claim for accrued benefits and the processing of other benefits following the death of a Veteran. See, e.g., Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); Quattlebaum v. Shinseki, 25 Vet. App. 171 (2010)(discussing the changes in the distinctions between accrued benefits under 38 U.S.C.A. § 5121A, which applies where the veteran died after October 10, 2008, as compared to accrued benefits under 38 U.S.C.A. § 5121, which applies in this case, since the Veteran died before October 2008); see also "Substitution in Case of Death of Claimant," 76 Fed.Reg. 8666-69 (Feb. 15, 2011). The appellant's December 2007 NOD could have been interpreted as a disagreement with denial of service connection for accrued benefits, and, resolving the matter in the appellant's favor, and the Board construes that communication as an NOD for purposes of an accrued benefits claim. Even though the Board finds that there is a timely appeal for accrued benefits, if the appellant is to prevail, the appellant must establish that the Veteran must have had a claim pending at the time of his death and that he would have been entitled to benefits, accrued and unpaid, under an existing rating or decision or on the evidence of record at the time he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. By regulation, VA has interpreted "evidence in the file at date of death" to include the Veteran's death certificate, since a claim that benefits are payable by reason of the Veteran's death are not complete without official evidence of the Veteran's death, even though such evidence was not in VA's claims file prior to the Veteran's death. 38 C.F.R. § 3.1000(d)(4). It is undisputed that the Veteran submitted a claim for service connection for a spine disorder that was pending when he died. That claim had been Remanded by the Board to allow additional development, including an exact diagnosis of the claimed disorder. The Veteran's service treatment records could not be located, and that had resulted in some confusion on the Veteran's part as to which part of his spine he injured in service. See January 2007 Board Remand. Although the Veteran died before he could be afforded VA examination, his death certificate, with consideration of the evidence already of record, provides an exact diagnosis for the cervical spine residuals which required the surgical procedure from which the complications resulted that caused his death. The RO's statement that the appellant could not "substitute" for the Veteran is, in essence, a determination that the evidence of record at the time of the Veteran's death was not sufficient to allow the appellant to prevail on her claim, as derivative of the Veteran's, without providing additional evidence. The RO's statement is correct, to the extent that the exact nature of the Veteran's cervical spine disorder was not revealed until his terminal hospitalization, and the diagnosis of the disorder for which the Veteran was seeking service connection was listed on his death certificate. The appellant did, in fact, submit additional evidence, and testify at an additional hearing after the Veteran's death. However, the Board's 2010 Decision which granted service connection for the cause of the Veteran's death establishes that the Veteran's death certificate and the medical opinions of record prior to his death were the basis for granting the claim. VA regulation defines the Veteran's death certificate as "of record" for purposes of an accrued benefits claim. The Board's 2010 Decision establishes that the appellant prevailed on the basis of evidence "of record" at the time of the Veteran's death, with the inclusion of the death certificate. She is entitled to accrued benefits as defined for VA purposes. ORDER The appeal for accrued benefits is granted, subject to law and regulations governing the effective date of an award of compensation. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs