Citation Nr: 1516643 Decision Date: 04/17/15 Archive Date: 04/24/15 DOCKET NO. 13-03 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to benefits in addition to death and indemnity compensation (DIC), to include a retroactive amount payable under Nehmer and the Veteran's pain and suffering prior to his death. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to December 1971. The Veteran died in January 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The RO granted service connection for cause of death. In September 2012, the appellant disputed the amount of the benefits she received. In her February 2013 substantive appeal, the appellant requested a hearing before a Veterans Law Judge at the U.S. Embassy in Santiago, Chile. The Houston RO initially scheduled a videoconference hearing in Chile for June 2014; however, in a May 2014 letter it informed the appellant that it would be unable to schedule such a hearing. The appellant has not since requested a Board hearing. Also, in an October 2013 letter, she had previously indicated that she would not be able to attend a hearing in the United States. As such, her Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in such files reveals that they are relevant to the issue on appeal. However, the RO reviewed such evidence in the January 2013 statement of the case. As such, the appellant is not prejudiced by the Board's review of such evidence. FINDINGS OF FACT 1. In a December 2011 rating decision, the RO granted service connection for cause of death of the Veteran. 2. In September 2012, the appellant reported disagreement with her award amount. 3. The appellant claims that she is entitled to additional benefits due to the Veteran's exposure to Agent Orange and his pain and suffering. CONCLUSION OF LAW Benefits in addition to DIC are legally precluded. 38 U.S.C.A. §§ 1311, 1318, 5121; (West 2014); 38 C.F.R. §§ 3.1000, 4.40 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). As regards the appellant's claim for benefits in addition to DIC, she has been notified of the reasons for the denial of this matter, and has been afforded the opportunity to present evidence and argument in connection with the claim. Moreover, the RO has contacted the appellant numerous times to determine what she is claiming and inform her that she is already receiving the maximum benefits possible. The Board finds that these actions are sufficient to satisfy any due process owed the appellant. As explained in more detail below, the appellant's appeal herein decided lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Merits of the Claim In a December 2011 rating decision, the RO granted the appellant service connection for the Veteran's cause of death and awarded her DIC benefits. The appellant has since disagreed with the amount of her award, and has argued that she is warranted additional benefits due to the Veteran's exposure to Agent Orange and his pain and suffering prior to his death. (September 2012, February 2013, and March 2013 statements). The Board initially notes that the appellant has not claimed, and the record does not show, that she is in a nursing home, blind, in need of aid and attendance of another person, or permanently housebound; and thus would warrant additional benefits under the provisions for survivor benefits of 38 U.S.C.A. §§ 1311 and 1318. Rather, the appellant claims that additional benefits are warranted due to the Veteran's exposure to Agent Orange in Vietnam, under "Nehmer". Presumably she is referring to the set of cases relating to Nehmer v. United States Department of Veteran's Affairs. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Generally, the Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816. A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including diabetes mellitus. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). The RO appears to have already considered all disabilities for which Nehmer would be applicable years prior to the current claim. Many years prior to his death, the RO granted the Veteran service connection for diabetes mellitus and other disabilities, under Nehmer. (May 2002 and April 2003 rating decisions). The appellant has not indicated that the Veteran had an additional disability for which service connection has not already been granted and would be warranted on a presumptive basis, due to Agent Orange exposure, under Nehmer. Indeed, the appellant has not indicated how she believes Nehmer applies to the current claim. Furthermore, the provisions for survivor benefits, under 38 U.S.C.A. § 1311 and 1318 do not authorize additional compensation for Agent Orange exposure. Additionally, as will be further discussed below, the Veteran did not have any claims for benefits on appeal at the time of his death, such that the question of whether Nehmer or Agent Orange exposure would have needed to be considered for his claims. As such, the Board finds that additional benefits under Nehmer are not warranted. Next, the Board notes that in addition to Agent Orange exposure, the appellant seeks VA compensation based on her pain and suffering prior to his death. The provisions for survivor benefits, under 38 U.S.C.A. § 1311 and 1318, also do not authorize compensation for the pain and suffering of the deceased. To the extent that the appellant might be claiming that the Veteran should have received additional benefits for pain prior to his death (and thus that she should receive additional benefits for his pain prior to his death), the Board finds that such benefits are not warranted. At the time of his death, the Veteran was service-connected for numerous disabilities and had a total disability rating based on individual unemployability. To the extent that the Veteran may have had pain and suffering in relation to such service-connected disabilities, such symptoms would have been considered in rating the relevant service-connected disability. The Board points out that the functional effects of pain are contemplated under the schedule of rating disabilities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (although the Board is required to consider the effect of the Veteran's pain when making a rating determination under 38 C.F.R. § 4.40, the rating schedule does not require a separate rating for pain). Furthermore, a symptom like pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). To the extent that the appellant is arguing that the Veteran should have been separately service-connected for pain, without any underlying disability, service connection would not have been possible for him in life, much less to the appellant after his death. To the extent that the appellant may be requesting benefits based on accrued benefits, the Board also finds that such benefits are not warranted. Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000 (a). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c). At the time of his death, the Veteran did not have any claims for service connection pending. As such, even if the Veteran had pain symptoms, in relation to a non-service-connected disability prior to his death, there was no such claim on appeal at the time of his death. Furthermore, the appellant has not filed a claim for accrued benefits. As such, additional benefits in the form of accrued benefits are not warranted. Furthermore, the Board notes that the concept of "pain and suffering" is generally found in tort law. See generally, Neal v. Derwinski, 2 Vet. App. 296, 298-9 (1992); Sweitzer v. Brown, 5 Vet. App. 503, 506 (1993); Setoff of Federal Tort Claims Act Damages, VAOPGCPREC 52-91 (1991). The Board observes that, like the Court of Appeals of Veterans Claims, it "is unable to award such relief. It is not within the Court's power to award such traditional tort damages as reimbursement for expenses or compensation for 'pain and suffering'". See Bagwell v. Brown, 9 Vet. App. 337, 338 (1996). At this juncture, the claim for benefits, in addition to the already awarded DIC benefits, must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Benefits in addition to DIC, to include a retroactive amount payable under Nehmer and for the Veteran's pain and suffering prior to his death, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs