Citation Nr: 1517172 Decision Date: 04/22/15 Archive Date: 04/24/15 DOCKET NO. 11-09 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to enhanced Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1311(a)(2). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1955 to September 1957. He died in September 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted, in pertinent part, the appellant's claim for service connection for cause of death and basic eligibility to Dependents' Educational Assistance. In March 2009, the appellant initiated this appeal, arguing entitlement to enhanced DIC under 38 U.S.C.A. § 1311(a)(2). In February 2011, a statement of the case was issued, and the appellant filed a substantive appeal (VA Form 9) in April 2011. In February 2015, the appellant and her daughter testified before the undersigned at a Travel Board hearing at the RO; a copy of that hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT The Veteran was not in receipt of nor entitled to received compensation for a service connected disability that was rated totally disabling for at least 8 continuous years immediately preceding his death. CONCLUSION OF LAW The criteria for payment of enhanced DIC under 38 U.S.C.A. § 1311(a)(2) have not been met. 38 U.S.C.A. § 1311(a)(2) (West 2014); 38 C.F.R. § 3.22 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim for enhanced DIC under 38 U.S.C.A. § 1311(a)(2), although it appears that she was not provided with Hupp-compliant notice in this case, the Court has held that the VCAA is not applicable to cases such as this one in which the law, rather than the evidence, is dispositive. See Smith v. Gober, 14 Vat. App. 277, 231-232 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); and Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). See also Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The appellant contends that she is entitled to additional (or enhanced) DIC under 38 U.S.C.A. § 1311(a)(2) because the Veteran's service-connected disability manifested more than 8 years prior to his death. DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2014). A surviving spouse may be paid DIC at an increased (or enhanced) rate if at the time of the Veteran's death he or she 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 8 years immediately preceding the Veteran's death. Only periods in which the Veteran was married to the surviving spouse are considered when making that determination. 38 U.S.C.A. § 1311(a)(2). In this case, the record indicates that the appellant and the Veteran were married in November 1958 and remained married until the Veteran's death in September 2008. Thus, the first requirement for enhanced DIC benefits has been established. Except with respect to benefits under the provisions of 38 U.S.C.A. § 1311(a)(2), § 1318, and certain cases involving individuals whose VA benefits were forfeited because of treason or subversive activities, issues involved in a survivor's claim for death benefits are decided without regard to prior disposition of those issues during the Veteran's lifetimes. Here, because the appellant's claim is predicated upon 38 U.S.C.A. § 1311(a)(2), the Board must consider prior adjudications of issues that were made during the Veteran's lifetime. "Entitled to receive" means that the Veteran filed a claim for disability compensation during his or her lifetime and, in pertinent part, the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the specified period but for clear and unmistakable error in a VA decision on a claim filed during the Veteran's lifetime; 38 C.F.R. § 3.22(b). A review of the Veteran's claims folder shows that the Veteran first contacted VA with a claim for benefits in January 2006. His military records show that he served as a crewman aboard the USS Adnaki (ATF-96) during Operation Redwing (and he described his experiences with his exposure to radiation in vivid detail in a statement dated February 2006). His claim for service connection for myelodysplastic leukemia was granted on a presumptive basis in February 2006, and the Veteran was awarded a 100 percent disability rating for this disease. In his statement, the Veteran provides details of a skin disorder, which he believes was caused by radiation exposure, and which began in 1960, shortly after his discharge from service. Other letters detail various illnesses and medical problems, including the loss of his teeth at an early age, all of which he believed were related to this exposure during Operation Redwing. It is unfortunate that the Veteran did not seek VA benefits when his illnesses first surfaced. Regrettably, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to enhanced DIC under 38 U.S.C.A. § 1311(a)(2). The record shows that the Veteran suffered from numerous problems from the time he left service in 1957 to the time died. However, during the Veteran's lifetime, service-connection was granted and rated at 100 percent from January 23, 2006 until September 28, 2008, only two years, eight months, and one day. Unfortunately, the law does make an exception for cases like this, and the second criteria of for enhanced DIC benefits is not met. The Board observes that determinations regarding entitlement to enhanced DIC under 38 U.S.C.A. § 1311(a)(2) are based on determinations made during the Veteran's lifetime or challenges to such decisions on the basis of clear and unmistakable error (CUE) rather than on de novo posthumous determinations as to whether the Veteran hypothetically could have been entitled to certain benefits if he or she had applied for them during his or her lifetime. 38 C.F.R. § 3.10(f)(3); see also 70 Fed. Reg. 72211 (Dec. 5, 2005). Unfortunately, even though the appellant points out that the Veteran was totally disabled for 8 or more years prior to his death, neither the appellant nor her representative has alleged CUE in any rating decision promulgated during the Veteran's lifetime. The Veteran's record has been scoured for evidence of an earlier claim for benefits, but finds that service connection and the 100 percent rating was granted from the date of the original claim, and there is nothing in the record to suggest that the Veteran filed a claim that was unanswered by VA prior to January 2006. Based on the foregoing, the law mandates that the appellant's claim for enhanced DIC under 38 U.S.C.A. § 1311(a)(2) must be denied as she does not meet the eligibility criteria for such benefits. In summary, here, the law, and not the evidence, is dispositive of this claim, and the Board finds that the appellant's claim of entitlement to enhanced DIC under 38 U.S.C.A. § 1311(a)(2) must denied based on a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to enhanced DIC under 38 U.S.C.A. § 1311(a)(2) is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs