Citation Nr: 1502080	
Decision Date: 01/15/15    Archive Date: 01/27/15

DOCKET NO.  12-16 290	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death.

2.  Entitlement to accrued benefits.  


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION


The Veteran had active military service from August 1966 to May 1970.  The Veteran died in July 2010.  The appellant claims as his surviving spouse. 

This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

In July 2013, the appellant testified at a videoconference hearing before a Veterans' Law Judge (VLJ).  A transcript of that hearing is of file. 

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 Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the time of the Veteran's death, he did not have a pending claim for VA benefits and there were no due and unpaid periodic monetary benefits to which he was entitled to receive on the basis of evidence in the file.



CONCLUSION OF LAW

The criteria for entitlement to accrued benefits have not been met.  38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and implemented in part at 38 C.F.R § 3.159 (2014), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required.

Analysis 

The appellant appeals the denial of entitlement to accrued benefits.  Under 38 U.S.C.A. § 5121, a proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the Veteran was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the Veteran's death which were due and unpaid preceding the Veteran's death.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  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 light of applicable laws and regulations, the Board finds against the appellant's claim for accrued benefits.  In this regard, the appellant submitted a claim for accrued benefits within a year of the Veteran's death.  There was no claim, however, pending at the time of the Veteran's death.  Without a pending claim there is no basis for an accrued benefits claim.  Accrued benefits derive from a claim for VA benefits that was filed and pending at the time of death.  See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998).  The record is devoid of any pending claim and the appellant has not indicated that a claim was pending at the time of the Veteran's death.  Under these circumstances, the appellant's claim must be denied as a matter of law.


ORDER

Entitlement to accrued benefits is denied.


REMAND

Having reviewed the evidence of record, the Board finds that further development is needed to address the issue of entitlement to service connection for cause of the Veteran's death.  The Veteran died in July 2010.  The certificate of death listed the immediate cause as respiratory failure due to or as a consequence of pulmonary metastatic disease due to or as a consequence of renal cell carcinoma.  At the time of death, the Veteran was not service connected for any disability.  

In this case, the Veteran has been found to have served in the Republic of Vietnam.  Hence, he is presumed to have been exposed to Agent Orange during such service.  The appellant contends that the Veteran's renal cancer was caused by his exposure to Agent Orange.  In August 2013, private examiner, Dr. Markus opined that the cause of the Veteran's renal cell carcinoma, while this is rarely 100 percent clear, it is likely that his exposure to Agent Orange was a significant contributing factor for the development of disease.  In light of the opinion of Dr. Markus and the lay testimony of the appellant, a remand is warranted to obtain a VA opinion on this matter. 

VA has a duty to assist claimants in obtaining the evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes obtaining a medical opinion if one is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4).  

Accordingly, the case is REMANDED for the following action:

1. After obtaining the necessary authorization from the appellant, the AOJ should attempt to obtain and associate with the claims file any medical records relating to medical care provided immediately prior to the Veteran's death in July 2010.  This includes any hospital stays and treatment records from around that time.  If the information requested cannot be obtained, such should be noted in the record, and action should be taken in accordance with 38 C.F.R. § 3.159(e).  

2. Thereafter, obtain a VA medical opinion from an oncologist which addresses whether it is as least as likely as not (i.e., 50 percent or greater probability) that the Veteran's in service herbicide exposure caused his renal cell carcinoma.  The oncologist must be provided access to the Veteran's claims folder, Virtual VA file, and VBMS file for review.  The oncologist must specifically address whether she/he agrees or disagrees with the August 2013 opinion offered by Dr. Markus, and explain why she/he agrees or disagrees.  A complete rationale for all opinions must be provided. 

3. The AOJ must ensure that the medical opinion report complies with this remand and the questions presented in the request.  If the report is insufficient in any manner, it must be returned to the examiner for necessary corrective action, as appropriate.

4. After ensuring that the duty to assist has otherwise been fulfilled, the AOJ must readjudicate the issue on appeal.  If the benefit is not granted, the appellant and her representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs