Citation Nr: 1512712	
Decision Date: 03/25/15    Archive Date: 04/01/15

DOCKET NO.  14-40 518	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to accrued benefits for a surviving spouse.  


REPRESENTATION

Appellant represented by:	Chris Attig, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant's attorney



ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014).  38 U.S.C.A. § 7107(a)(2) (West 2014).  

The Veteran served on active duty from August 1955 to September 1985.  He died in March 2012.  The appellant is his surviving spouse.  

This case comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota.  Jurisdiction over this appeal was subsequently transferred to the Regional Office (RO) in Philadelphia, Pennsylvania, which forwarded the appeal to the Board.  

In January 2015, the claimant's attorney, at the Little Rock, Arkansas, RO, presented the appellant's case at a videoconference hearing before the undersigned Veterans Law Judge, in Washington, DC.  A written transcript of the hearing has been prepared and incorporated into the evidence of record.  

The Board notes that, prior to the filing of the appellant's claim, the law was amended to permit substitution of claimants when the original claimant dies during the pendency of the claim or appeal. 38 U.S.C.A. § 5121A (West 2014).  The amendment applies to pending claims or appeals where the death occurred on or after October 10, 2008.  In this case, the Veteran died in March 2012.  However, as will be discussed below, the Veteran's claims which were pending at the time of death became final when no Notice of Disagreement (NOD) was filed within the applicable time period.  As noted in more detail below, the September 2011 rating decision became final when the appellant did not express disagreement with the September 2011 rating decision within the applicable time period.  As such, there are no claims pending or on appeal for which the appellant would be eligible for substitution.  Therefore, while the Board has considered the aforementioned amendment, the Board finds that it is not applicable in this case, as there are no claims for which the appellant could be substituted.  

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."  


FINDING OF FACT

While claims adjudicated in the September 2011 rating decision were pending at the time of the Veteran's death, no NOD was filed within one year from the date of notice to the Veteran of the September 2011 rating decision, such that there are no claims pending or on appeal which may form the basis for a grant of accrued benefits.  


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits have not been met.  38 U.S.C.A. § 1110, 1131, 1133, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.1000 (2014).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014), with implementing regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2014), describes VA's duty to notify and assist claimants in substantiating claims for VA benefits.  

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) (holding that VCAA does not apply where there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the claimant in substantiating his claim).  See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  

As will be discussed in further detail below, the appellant's claim 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.  

Moreover, the Board notes, with regard to claims for service connection for accrued benefits purposes, the applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse.  38 U.S.C.A. § 5121(a) (West 2014); 38 C.F.R. § 3.1000(a) (2014).  The Board has no obligation, or authority, to obtain new medical evidence in the form of a VA opinion. 

Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
 
Entitlement to Accrued Benefits

Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse.  38 U.S.C.A. § 5121(a) (West 2014); 38 C.F.R. § 3.1000(a) (2014).  A claim for such benefits must be filed within one year of the veteran's death.  38 C.F.R. § 3.1000(a), (c) (2014).  

In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision."  See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application).  

The term "pending claim" means an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c) (2014).  The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.  38 C.F.R. § 3.160(d) (2014); see also 38 C.F.R. §§ 20.1103, 20.1104 (2014).  "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death.  38 C.F.R. § 3.1000(d)(4) (2014); Hayes v. Brown, 4 Vet. App. 353 (1993).  

The Veteran's death certificate reveals that he died in March 2012.  Prior to his death, in a September 2011 rating decision, the RO granted service connection for ischemic heart disease and assigned a 100 percent rating, effective the date of legislative change which allowed for the grant - August 31, 2010.  The September 2011 rating decision also established basic eligibility to Dependents' Educational Assistance (DEA), but denied service connection for adenocarcinoma, posttraumatic stress disorder (PTSD), and hypertension (HTN).  The decision also denied a compensable rating for service-connected bilateral hearing loss.  The Veteran received notice of this decision in September 2011 and as noted above, he died in March 2012.  Therefore, his death was within the statutorily provided one year period during which he could have filed a notice of disagreement (NOD).  

In April 2012, the appellant filed a claim for death benefits, and service connection for the cause of the Veteran's death was granted in a May 2012 rating decision.  In May 2013, she submitted a NOD with the May 2012 decision.  Primarily, her statement indicated her intent to file for accrued pension purposes.  The attorney's statements at the January 2015 hearing further detailed that the appellant wanted an effective date of 1985 for the grant of 100 percent for heart disease.  Moreover, it was argued on her behalf that service connection should be granted for conditions that had been denied.  

It is noted that prior to his death, the Veteran did not file a notice of disagreement with any aspect of above-mentioned September 2011 rating decision.  
He died within the one year period within which to file a timely appeal.  

An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death.  38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014).  In order to support a claim for accrued benefits, the veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.  38 U.S.C.A. §§ 5101(a), 5121(a) (West 2014); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).  

In this case, there was a claim or claims pending at the time of the Veteran's death.  The RO, in September 2011, had determined that service connection was warranted for heart disease, but that service connection was not warranted for adenocarcinoma, PTSD, or HTN, and that a compensable rating for bilateral hearing loss was not warranted.  In the notification letter to the Veteran, dated September 14, 2011, he was also advised as to withholding compensation for retirement and an additional allowance for dependents.  While the Veteran did not file a NOD as to any aspect of the September 2011 rating decision prior to his death, the period to do so did not expire until September 13, 2012.  Thus, the Veteran's claims were pending on the date of the Veteran's death.  See M21-1 MR, Part VIII, Chapter 2, Section a., Notes:  For accrued purposes, a claim I still considered pending at the date of death if the one-year period after the date of notice of an award or disallowance has not expired for filing a NOD.

In the present case, the appellant submitted no document within the remainder of the one-year period which may be considered a NOD as to any aspect of the September 2011 rating decision.  While there is some correspondence from her during this period, no document evidences a disagreement with the September 2011 rating decision, indicates an intent to appeal or otherwise identifies any error in the September 2011 rating decision.  It is not until her private attorney's involvement in the case, in May 2013, that there is any discussion of the September 2011 rating and identification of bases for a grant of accrued benefits.  This is well beyond the end of the one year period to file a NOD.  Without a timely filed NOD following the September 2011 rating decision, by either the Veteran or the appellant, the September 2011 rating decision is final and there is no pending claim on which an accrued benefits claim may be based.

In Sabonis, supra, 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 accrued benefits and her claim must be denied.  

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ORDER

Accrued benefits for a surviving spouse are denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs