Citation Nr: 1739933 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 13-18 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits by the surviving spouse. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Air Force from November 1956 to September 1979. He had service in Thailand. The Veteran was awarded the Meritorious Service Medal, the Vietnam Service Medal with 3 Devices, and the Joint Service Commendation Medal. The Veteran died in August 1994. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The decision denied service connection for the cause of the Veteran's death and denied accrued benefits. The appellant timely appealed the decision with a notice of disagreement (NOD) received by VA in November 2010. After the issuance of a statement of the case in June 2013, the appeal was perfected with a timely filing of a substantive appeal in the same month. With respect to the issue of entitlement to accrued benefits, although the November 2010 NOD contained in a VA Form 21-4138 expressly lists only an appeal for the denial of service connection for the cause of the Veteran's death, the Board construes the accompanying cover letter from the appellant's representative as an NOD with respect to entitlement to accrued benefits because it expresses the appellant's disagreement with "[e]ntitlement to death benefits." This construction is consistent with the matter being addressed in the June 2013 statement of the case, listed in the June 2013 VA Form 9 (i.e., the aforementioned substantive appeal), listed in an April 2014 supplemental statement of the case, and certified to the Board in November 2016. The appellant testified before the undersigned Veterans Law Judge at a December 2016 videoconference hearing. A transcript of the hearing was associated with the claims file and reviewed. The Board acknowledges that a prior claim for entitlement to service connection for the cause of the Veteran's death was denied by the RO in Nashville, Tennessee, in January 1995, and that the decision became final. However, based on liberalizing regulations that created a new presumptive basis for granting service connection for ischemic heart diseases as secondary to herbicide agent exposure, the appellant's current claim on appeal does not require new and material evidence. See Diseases Associated with Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease), 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010) (to be codified at 38 C.F.R. pt. 3); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999), aff'd, 284 F.3d 1158 (9th Cir. 2002). 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. FINDINGS OF FACT 1. The Veteran died in August 1994. 2. At the time of his death, the Veteran was not entitled to periodic monetary benefits under existing ratings or decisions that were due and unpaid, and he was not entitled to any due and unpaid periodic monetary benefits based on evidence in the claims file at the date of his death. CONCLUSION OF LAW The criteria for the payment of accrued benefits have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5121 (West 2014); 38 C.F.R. §§ 3.159, 3.1000 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she is entitled to accrued benefits. After reviewing the pertinent evidence of record, the Board finds no support for her contention. The reasons and bases for this decision will be explained below. I. Notice and Assistance The Board has considered the appellant's appealed issue-entitlement to accrued benefits-and decided on the matter based on the pertinent evidence. Neither the appellant nor her representative has raised any other issues with respect to VA's duties, nor have any other issues been reasonably raised by the record with respect to VA's duties. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Given the above, the Board will proceed to the merits of this appeal. II. Discussion An accrued benefit is a periodic monetary benefit authorized under laws administered by the VA to which a veteran was entitled at the time of his or her death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due to the veteran but unpaid prior to the last date of entitlement. Accrued benefits will, upon the death of the veteran, be paid to the veteran's spouse, children, or dependent parent. 38 U.S.C.A. § 5121 (a); 38 C.F.R. § 3.1000. In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In this case, the Veteran did not have a claim pending for benefits at the time of his death, and were there no benefits due to him that were unpaid prior to the last date of entitlement. As such, the claim for accrued benefits must be denied. ORDER Accrued benefits by the surviving spouse is denied. REMAND Additional development is required before the Board can adjudicate the issue of entitlement to service connection for the cause of the Veteran's death. The Veteran was not service connected for any disability at the time of his death. The August 1994 death certificate lists the cause of death as acute myocardial infarction caused by arteriosclerosis. 10/07/1994, VBMS entry, Medical Treatment Record - Non-Government Facility, at 6; accord 07/03/2013, VBMS entry, Medical Treatment Record - Non-Government Facility, at 1, 3. When a veteran is presumed to have been exposed to an herbicide agent while serving in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, then ischemic heart diseases (including, but not limited to, acute myocardial infarction) shall be presumed to be service connected. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). In this case, the Veteran's military personnel and service records do not expressly reflect service in the Republic of Vietnam. However, his military personnel records indicate that he was sent on a temporary duty assignment from September 1962 to December 1962. 11/17/2010, VBMS entry, Military Personnel Record (File A), at 45. A statement from the Veteran's daughter indicates that the Veteran's former spouse (not the appellant) recalls the Veteran possibly serving in Vietnam in 1962 and returning before Christmas in the same year. 01/19/2012, Legacy Content Manager entry, VA 21-4138 Statement In Support of Claim, at 7. Thus, a verification of service in the Republic of Vietnam during the Veteran's temporary assignment in 1962 should be requested from the appropriate service department or agency. Moreover, VA has determined that a special consideration of herbicide agent exposure should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. VA ADJUDICATION PROCEDURE MANUAL M21-1, subpart IV, ch. 1, § H.5 (updated Aug. 23, 2017). In this case, military personnel records reflect that the Veteran served in Thailand from December 1970 to December 1971, from January 1973 to an unspecified date, and from July 1973 to July 1974. 11/17/2010, VBMS entry, Military Personnel Record (File A), at 43, 45. During those periods, he was a registry clerk, registry shift supervisor, administrative superintendent, and administrative technician. Id. at 49; 11/17/2010, VBMS entry, Certificate of Release or Discharge from Active Duty (DD 214) (1/14/73-1/15/78), at 1; 11/17/2010, VBMS entry, Certificate of Release or Discharge From Active Duty (DD 214) (1/14/69-1/13/73), at 1. At the December 2016 Board hearing, the appellant indicated that the Veteran was stationed at two bases in Thailand, including the Don Muang Royal Thai Air Force Base. 12/15/2016, VBMS entry, Hearing Transcript, at 5, 8. The appellant, through her representative, has contended that presence near the perimeter is consistent with the Veteran's service. Id. at 4-7, 9; 12/13/2016, VBMS entry, VA 646 Statement of Accredited Representative in Appealed Case, at 3. As such, a verification of whether the Veteran's daily work duties placed him near air base perimeters in Thailand should be requested from the appropriate service department or agency. The Board also notes that in November 2011, the National Personnel Records Center informed the appellant that a record requested by her pertaining to the Veteran is lost. 11/22/2011, Virtual VA entry, VA 21-4138 Statement in Support of Claim, at 5. The record was not lost by any fault of the appellant. An earlier record inquiry also led to a failure to locate documents in September 2010. 11/17/2010, VBMS entry, Third Party Correspondence, at 1. In accordance with O'Hare v. Derwinski, 1 Vet. App. 365, 368 (1991), a heightened duty now exists to assist the appellant in the development of the case. Additionally, on remand, any outstanding, pertinent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records. Additionally, notify the appellant that she may submit any relevant VA and private treatment records in her possession to VA. 2. After all development has been completed and returned from step 1 above, contact the appropriate service department or agency for records verifying whether the Veteran's temporary duty in 1962 was in Vietnam. 3. After all development has been completed and returned from step 1 above, contact the appropriate service department or agency for records verifying whether the Veteran's daily work duties while stationed in Thailand would at least as likely as not have placed him near air base perimeters from December 1970 to July 1974. During that period, the Veteran was a registry clerk, registry shift supervisor, administrative superintendent, and administrative technician. 4. After all development has been completed and returned from steps 1-3 above, if any benefit sought remains denied, issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and arguments on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs