Citation Nr: 1725167 Decision Date: 06/30/17 Archive Date: 07/10/17 DOCKET NO. 10-42 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits. 3. Entitlement to non-service connected death pension benefits. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1956 to April 1960. He died in January 1963. The appellant married the Veteran in September 1957. For the purpose of this decision only she is assumed to be the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. The case was later certified to the Board by the RO in San Diego, California. The appellant testified in February 2016 before the undersigned. A transcript of the hearing was created and is associated with the claims file. In April 2016 the Board remanded the issues for evidentiary development. The case has now been returned to the Board for further appellate action. The issue of entitlement to the proceeds of an alleged Veterans' Group Life Insurance policy was raised by the record in a June 2009 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not suffer an in-service incident, illness or injury which can be etiologically linked to the cause of his death. 2. There were no claims pending at the time of the Veteran's death. 3. The Veteran did not have qualifying wartime service for non-service connected death pension purposes. CONCLUSIONS OF LAW 1. The cause of the Veteran's death was not due to a disease or injury incurred or aggravated inservice. 38 U.S.C.A. §§ 1131, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2016). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2016). 3. The criteria for basic eligibility for nonservice connected VA death pension benefits have not been met. 38 U.S.C.A. §§ 101, 1521, 1541 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to service connection for the cause of the Veterans' death. The appellant contends that the Veteran's death was related to his active-duty service and that she is therefore entitled to dependency and indemnity compensation. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated during active service, or may be presumed to have been incurred during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a). The pertinent presumptive regulations will be discussed below. Where a disease is first diagnosed after service, service connection will be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran's available service treatment records have been obtained and considered. The Board acknowledges that only incomplete service records are available, and some service records may have been destroyed by fire at the National Personnel Records Center in St. Louis, Missouri, in 1973. Through a July 2010 letter, the appellant was advised that the Veteran's complete records were not available. When service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Available service treatment records indicate that, while on active duty, the Veteran suffered a subarachnoid hemorrhage in January 1958. The hemorrhage was caused by an aneurysm in the cerebral vessel for which a cause was undetermined. Service treatment records indicate that when the aneurysm ruptured, the Veteran entered a coma for two and a half months. He was treated with occlusion of the left internal carotid artery followed by ligation. The service treatment records show that by July 1958, the Veteran had almost completely recovered except for partial left third nerve palsy. It was noted that he reported double vision, for which he wore an eye patch. In April 1960, the Veteran was permanently retired from active duty due to physical disability. He submitted a claim for disability compensation the same month, and in February 1962 he was provided with a VA examination to consider the nature and severity of his claimed disabilities. The examiner diagnosed third and fourth left cranial nerve paresis, secondary to the in-service aneurysm, with associated diplopia; and healed, post-traumatic left temporal parietal and left cervical area scars. The examiner also noted minimal chronic brain disease, with residual complaints consisting mainly of diplopia. In a June 1962 rating decision the Veteran was granted entitlement to service connection for diplopia due to left and third and fourth cranial nerve paresis, secondary to a vascular accident, rated 30 percent disabling; and for left temporal parietal and cervical area scars, rated 10 percent disabling. The Veteran died in January 1963. His death certificate indicates that he died of a subarachnoid hemorrhage, caused by an automobile accident, with the interval between the onset of injury and death listed as "immediate." At the time of his death he was service connected for diplopia and scars as stated above, but for no other disabilities. No competent evidence has been submitted offering any medical opinion linking the Veteran's fatal subarachnoid hemorrhage to his active duty service. In December 2012, a VA medical opinion was requested to consider any relationship between the Veteran's active-duty service and his death. The VA medical doctor stated that he was unable to provide an opinion as to whether the cause of the Veteran's death was related to the in-service subarachnoid hemorrhage without resort to mere speculation. The reviewing physician expounded that the Veteran could have sustained head trauma as a result of the accident, which caused the subarachnoid hemorrhage, or that he could have had a spontaneous intracranial subarachnoid hemorrhage which caused the auto accident. In the first scenario, the examiner opined that the cause of death would most likely be unrelated to the in-service event, while in the second scenario; the cause of death would most likely be related to the in-service subarachnoid hemorrhage. The examiner stated, however, that to provide an opinion addressing the etiology required consideration of an autopsy report. Thereafter, in March 2014 VA made several attempts to obtain the 1963 autopsy report, but all responses, to include from the Warren County Clerk, were negative. The appellant has not advanced any specific argument to support finding an etiological relationship between the Veteran's death and his military service. Rather, she has argued that "he was still property of the military" at the time of his death. The Veteran's Form DD-214 indicates, however, that he retired for reasons of disability in April 1960, over two years before his death. As such, the Veteran was not on active duty, active duty for training, or inactive training at the time of his death. The appellant's argument that the Veteran was serving in the reserves at the time of his death has been considered. The record does not, however, reveal any relevant periods of active duty for training or inactive duty for training. Indeed, the DD-214 indicates that he was permanently retired by reason of physical disability. As such, no evidence supports finding that the Veteran was either serving on active duty, active duty for training, or inactive duty for training at the time of his death. The only competent evidence of record with regard to the etiology of the Veteran's cause of death is the December 2012 VA report. That opinion concluded that linking the cause of the Veteran's death to service would require speculation. Under 38 C.F.R. § 3.102, the "Board may not award benefits when the award would be based upon pure speculation." Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009). In this case there is no competent medical evidence supports the appellant's claim. On the contrary, all competent medical evidence of record indicates that the appellant's theory of the case is unsupported by anything more than mere speculation. As such, the Board cannot find an approximate balance of positive and negative evidence, and the equipoise standard is not reached. The appellant should understand that except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C.A. § 5107. Although reasonable doubt shall be resolved in the favor of the claimant, such a reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Id. Accordingly, for the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for the cause of the Veteran's death. The benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to accrued benefits. Accrued benefits are defined as "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). In this case, the appellant's claim was not timely filed as the Veteran died in January 1963, and the appellant's claim was filed more than four decades later in December 2008. Substantively, the record shows that no claims were pending at the time of the Veteran's death; there was no unrated medical evidence in the claims file at the time of his death; and the Veteran was not entitled to any unpaid benefits at the time of his death. Thus, the claim for accrued benefits must be denied. In Jones v. West, 136 F.3d 1296 (Fed.Cir. 1998), the United States Court of Appeals for the Federal Circuit (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." Id. at 1299. The Federal Circuit noted that "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." Id. at 1300. A "claim for VA benefits pending on the date of death" is defined as "a claim filed with VA that had not been finally adjudicated by VA on or before the date of death." 38 C.F.R. § 3.1000 (d)(5). In sum, the Board finds that basic eligibility to receive VA accrued benefits is not shown as the appellant's claim was not filed timely, and there was no claim for VA benefits pending before the Veteran's death. The United States Court of Appeals for Veterans Claims has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Entitlement to death pension benefits. Non-service connected death pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C.A. §§ 1521, 1541; 38 C.F.R. § 3.3. To establish basic eligibility the evidence must show that the Veteran (1) served for at least ninety days during a period of war; or (2) served during a period of war and was discharged for a service-connected disability. Id. The term "period of war" is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. The Korean War ended on January 21, 1955. The next period of war, the Vietnam War period is from February 28, 1961, to May 7, 1975, for those who served in Vietnam, and from August 5, 1964 to May 7, 1975 for those who did not serve in Vietnam. 38 U.S.C.A. § 101 (29); 38 C.F.R. § 3.2 (f). The Veteran's service occurred after the Korean War and prior to either applicable period of the Vietnam War era. As the Veteran did not serve during a period of war, the appellant is not entitled to death pension benefits. Because the Veteran did not have qualifying wartime service, entitlement to nonservice connected death pension benefits is not warranted as a matter of law. Sabonis, 6 Vet. App. at 426. The claim is denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. Entitlement to death pension benefits is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs