Citation Nr: 1520584	
Decision Date: 05/13/15    Archive Date: 05/26/15

DOCKET NO.  13-24 836A	)	DATE
	)
	)

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

THE ISSUE

Whether the Veteran's combined disability rating may be posthumously increased.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active duty from August 1969 to August 1999.  He died in December 2009.  

The Appellant is his widow.  She appealed a March 2013 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

1. The Veteran did not have a formal or informal disability compensation claim pending when he died.

2. The Appellant is receiving Dependency and Indemnity (DIC) compensation.


CONCLUSION OF LAW

A surviving spouse may not file a claim for an increase for the Veteran's service-connected disabilities or for a new condition after the Veteran dies.  The spouse may only file for DIC compensation.  38 U.S.C.A. § 1310 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duty to Notify and the Duty to Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).  The facts of the case are not in dispute, and the Board finds that VCAA notice is not required because the issue presented is solely of statutory interpretation and the benefits sought are barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).

Merits Analysis

The Veteran was service connected for 10 disabilities when he died, the combined rating of which was 90 percent.1  

The Veteran was diagnosed with amyloidosis in November 2009.  He died from amyloidosis in December 2009.  VA granted the Appellant DIC compensation in June 2011 because of the amyloidosis. 

In January 2013, the State of Hawaii (State) denied the Appellant's claim for exemption from real property taxation.  The State denied the claim because VA informed the State the Veteran was not 100 percent disabled when he died, a requirement for the exemption.  

In February 2013, the Appellant filed a claim to posthumously revise the Veteran's disability rating.  To support her claim, the Appellant submitted a July 2013 statement from Dr. J.B., the Veteran's treating physician, who noted the Veteran was "completely disabled (100% disabled)" as of July 2009.  The Appellant also submitted a June 2013 Summary of Benefits (SOB) from the Columbia, South Carolina VA Call Center, which states the Veteran was "permanently and totally disabled" when he died.

This evidence, however, is not dispositive.  The Appellant does not argue, nor does the record support, that the Veteran had a disability compensation claim for amyloidosis pending when he died.  Appellant's September 2013 VA Form 9.  Such claim would have been required to posthumously increase the Veteran's disability rating.  See 38 U.S.C.A. § 5121 (2014).  Therefore, Dr. J.B.'s statement has no probative value.  Additionally, the SOB is an administrative error, and VA is not bound by it.  

Moreover, VA is compensating the Appellant for the amyloidosis.  To be clear, this disability is distinct from the 10 service-connected disabilities the Veteran had when he died.  The amyloidosis is not rated, and therefore is not combined with the other 10 disabilities, because DIC benefits are based on VA's acceptance that the Veteran's death was related to his military service, not the percentage of disability the Veteran had during his lifetime.

Lastly, the Appellant argues in her September 2013 VA Form 9 that "there's always an exemption to the rules, and my deceased husband's case is one of them," i.e., as a question of equity.  However, the Board is proscribed from consider equity in its decisions, and thus it cannot do so here.  38 U.S.C.A. § 7104 (West 2014); see also, Moffitt v. Brown, 10 Vet. App. 214, 225 (1997).



ORDER

VA may not posthumously increase the Veteran's combined disability rating.  The appeal is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs