Citation Nr: 1510941	
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  13-04 971	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to Dependency and Indemnity Compensation benefits at the enhanced rate, pursuant to the provisions of 38 U.S.C.A. § 1311.


WITNESSES AT HEARING ON APPEAL

Appellant and six other witnesses


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from September 1971 to September 1975.  The Veteran died in June 2011, and the appellant is his surviving spouse.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.


FINDING OF FACT

The Veteran was not rated totally disabled due to a service-connected disability for a continuous period of at least eight years immediately preceding his death in June 2011.


CONCLUSION OF LAW

The criteria for entitlement to Dependency and Indemnity Compensation benefits at the enhanced rate, pursuant to the provisions of 38 U.S.C.A. § 1311, have not been met.  38 U.S.C.A. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.5, 3.21 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Although VA has statutory and regulatory notice and duty to assist provisions, those provisions are not applicable herein as the appellant's claim for entitlement to Dependency and Indemnity Compensation benefits at an enhanced rate, pursuant to the provisions of 38 U.S.C.A. § 1311, is being denied as a matter of law.  Manning 

v. Principi, 16 Vet. App. 534, 542 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014).

When any veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay Dependency and Indemnity Compensation to such veteran's surviving spouse, children, and parents.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.5.  The rate of Dependency and Indemnity Compensation benefit payments is determined under 38 U.S.C.A. § 1311(a)(1).  The rate for Dependency and Indemnity Compensation benefits is increased in the case of the death of a veteran who at the time of death was in receipt of or was entitled to receive (or but for the receipt of retired pay or retirement pay was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.  Id.  In determining the period of a veteran's disability for purposes of the preceding sentence, only periods in which the veteran was married to the surviving spouse shall be considered.  38 U.S.C.A. § 1311(a)(2). 

Evidence of record reflected that the Veteran was awarded entitlement to service connection for multiple sclerosis and assigned a 30 percent evaluation for that disability, effective March 27, 2008, in a May 2009 rating decision.  In an August 2009 rating decision, the Veteran awarded a 100 percent schedular rating for multiple residuals secondary to multiple sclerosis, also effective March 27, 2008. 

The Veteran died in June 2011 due, in part, to multiple sclerosis.  In a January 2012 rating decision, the appellant was granted Dependency and Indemnity Compensation benefits at a rate of $1,154.00 per month, in accordance with 38 U.S.C.A § 1311(a)(1).  

In written statements of record and during a hearing before the RO, the appellant contended that she was entitled to the enhanced or higher monthly rate of Dependency and Indemnity Compensation benefits, essentially asserting that the Veteran had symptoms of multiple sclerosis preceding his diagnosis, had filed a prior claim for entitlement to service connection for multiple sclerosis in 2004, and was totally disabled due to multiple sclerosis before 2008.  She further asserted that it was unfair to deny her a higher rate because the Veteran would have lived another eight years if not for VA's actions, so as to meet the requirement for a higher rate under 38 U.S.C.A § 1311(a)(2).  The appellant has argued that VA is part of a government conspiracy to commit fraud and murder the Veteran. 

As an initial matter, evidence of record clearly reflects that the Veteran was not rated totally disabled due to a service-connected disability for a continuous period of at least eight years immediately preceding his death in June 2011.  The appellant has also not alleged and the record does not show that she is in need of aid and attendance (in a nursing home or blind), is permanently housebound, or has any children (with or without the Veteran) below the age of 18.  Thus, a higher rate of Dependency and Indemnity Compensation is not warranted on those bases.  38 U.S.C.A § 1311(b)-(f).  Additionally, as the Veteran's death did not occur prior to January 1, 1993, consideration of a higher basic monthly Dependency and Indemnity Compensation rate based on the Veteran's military pay grade in service as specified in 38 U.S.C.A. § 1311(a)(3) is not for application.

To the extent that the appellant alleges that the Veteran should have been rated as totally disabled due to multiple sclerosis since 2004, years earlier than the March 2008 effective date for service connection for the residuals of that disability, VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under 38 U.S.C.A. § 1311.  See 38 C.F.R. § 20.1106; 70 Fed. Reg. 72,211 (2005) (VA promulgated a final rule, which effectively barring entitlement to "enhanced" Dependency and Indemnity Compensation benefits under 38 U.S.C.A. § 1311(a)(2) on the basis of hypothetical entitlement); National Organization of 

Veterans' Advocates, Inc. v. Secretary of Veterans Affairs (NOVA III), 476 F.3d 872 (Fed. Cir. 2007) (Affirming VA's regulation interpreting 38 U.S.C.A. § 1311(a)(2) and 38 U.S.C.A. § 1318 identically); 79 Fed. Reg. 52,984 (2014) (to be codified at 38 C.F.R. § 20.1106).  

Despite comments made by the RO during the November 2012 hearing, the state of the law is such that claims for Dependency and Indemnity Compensation benefits under 38 U.S.C.A. § 1311 must be adjudicated with specific regard given to decisions made during the Veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after the Veteran's death.  The only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C.A. § 1311 are (1) to meet the statutory duration requirements for a total disability rating at the time of the Veteran's death; or (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision.

As the law is dispositive of the issue on appeal, the appellant's claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Based on the undisputed facts of this case, the appellant cannot be awarded Dependency and Indemnity Compensation benefits at the enhanced rate, pursuant to the provisions of 38 U.S.C.A. § 1311. 

The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be equitable.  38 U.S.C.A. §§503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).



ORDER

Dependency and Indemnity Compensation benefits at the enhanced rate, pursuant to the provisions of 38 U.S.C.A. § 1311, is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs