Citation Nr: 1612354 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 11-07 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The Appellant and T.V. ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had unconfirmed active service from November 1977 to May 1978. He died in January 2010, and the appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2012, the appellant testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) at the VA Regional Office (RO) in Lincoln, Nebraska. A transcript of the hearing has been associated with the record. The Virtual VA claims file and Veterans Benefits Management System (VBMS) have been reviewed. Other than the Informal Hearing Presentation, located in VBMS, documents contained within Virtual VA and VBMS are duplicative of those in the paper claims file. The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran did not perform active service during a period of war. CONCLUSION OF LAW The legal criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C.A. § 1541 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case here. As the law and not the facts are dispositive, no further VCAA duty to assist or duty to notify are necessary. The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2015). The Board observes that the undersigned VLJ, at the appellant's August 2012 hearing, explained the eligibility requirements for nonservice-connected death pension benefits, as well as explained the evaluation process. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. See 38 C.F.R. § 3.103. The duty to assist has been met. Death Pension Benefits Death pension benefits are generally available for surviving spouses, as a result of the veteran's nonservice-connected death. See 38 U.S.C.A. § 1541(a) (West 2015). An appellant is entitled to these benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. In determining annual income, all payments of any kind or from any source including salary, retirement or annuity payments, or similar income, which has been waived, shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); see also 38 C.F.R. § 3.271(a). The maximum annual rate of improved death pension benefits shall be the amount specified, and as increased from time to time, under 38 U.S.C.A. § 5312 . See 38 U.S.C.A. § 1541(b) (West 2014); 38 C.F.R. § 3.23(a)(5) (2015). As previously indicated, the Veteran's dates of active service are reported as November 18, 1977 to May 4, 1978. Based on these service dates, the Veteran did not have service during a period of war. As such, the appellant is not eligible for VA nonservice-connected death pension benefits, as the Veteran did not serve during a period of war as defined by regulation. See 38 C.F.R. § 3.2 (2015) (defining periods of war). The Board acknowledges that a DD 214 or other service department certification of service has not been obtained by the RO, and that the claims file does not demonstrate that the dates of service have been formally verified by a service department. However, the Board notes that the appellant did not allege that there are any other dates or periods of service; to the contrary, she testified that there were no other known periods of service. (See hearing transcript at p. 13-14). As such, there is no legal basis on which the appellant's claim can be granted. The Veteran's dates of service are not during a period of war. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected death pension benefits is denied. REMAND To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service caused, or contributed substantially or materially to cause, that death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2015). The appellant was provided with VCAA notice in July 2010, prior to the initial adjudication of her claim. However, the July 2010 letter failed to satisfy the three requirements for VCAA notice in the context of a claim for DIC benefits, as outlined in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). According to the United States Court of Appeals for Veterans Claims (Court), in the context of a claim for DIC benefits, section 5103(a) notice must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Thus, remand is necessary to afford the appellant proper notice as required by Hupp. During her August 2012 Board hearing, the appellant testified that the Veteran had been treated by lots of doctors, and several doctors had told her that the Veteran's death could have been caused by his active service. The record reflects that the appellant submitted a list of the Veteran's treating providers in November 2010. However, the record does not reflect that the RO made any attempts to obtain the Veteran's treatment records from those providers. In light of the appellant's assertions that the Veteran's doctors provided a medical nexus opinion linking his death to his active service, efforts should be made and documented to obtain these treatment records, as authorized by the appellant. The Board observes that the appellant's claims were filed in response to a first notice of death letter to the appellant, informing her that VA had been informed of the Veteran's death, and that his benefits would be discontinued as of January 1, 2010. However, none of the Veteran's records related to such payments have been associated with his claims file, and the nature of his payments is unclear; no rating decision or letter providing notice thereof is of record. Likewise, no other procedural documents or due process notices are of record. To the extent that the Veteran may have been granted service connection for a disability, such records are pertinent to the issue at hand. Documents in the Virtual VA claims file and VBMS have been reviewed; these documents have not been associated with the Veteran's electronic claims file. As such, the RO is requested to obtain and associate with the electronic claims file(s) any rating decisions, statement of the case(s), and other procedural documents and due process notices pertaining to the Veteran's prior claims and benefit awards, as well as any evidence considered in the course of such determinations. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the appellant with a letter explaining the evidence and information required to substantiate her claim for benefits, an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the Veteran's death based on a previously service-connected condition and/or a condition not yet service connected, and address the arguments made by the appellant with respect to her claim. A copy of the letter provided to the appellant should be included in the claims folder for review. 2. With any necessary authorization from the appellant, obtain the Veteran's records from St. John Hospital, U.M.C. Medical, Cushing Memorial Hospital, Leavenworth Lansing Family Health Center, Heart of Olathe, Olather Hospital, and Heartland Hospital. All attempts to locate these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the appellant and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim for service connection of the cause of the Veteran's death; and (d) notify her that she is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2014); 38 C.F.R. § 3.159(e)(1) (2015). 3. The RO/AMC should clarify whether the Veteran was in receipt of any VA benefits prior to his death, and document the nature of such benefits. The RO/AMC should associate any and all rating decisions and notices thereof, and other procedural documents and due process notices, as well as any available medical records or other evidence, with the Veteran's claims file. 4. When the development requested has been completed, review the case on the basis of additional evidence. If any benefit sought is not granted, the appellant should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs