Citation Nr: 1757764 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-17 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to compensation based on the need for regular aid and attendance or housebound status for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1960 to May 1962, in the Navy from May 1966 to May 1968, and in the Coast Guard from May 1969 to February 1971. He died in October 2008. The appellant is the Veteran's surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by another Veterans Law Judge (VLJ) in August 2013; it is now before the undersigned. The Board notes that, pursuant to the prior remand, a November 2016 statement of the case (SOC) was issued addressing both entitlement to accrued benefits (as described above) and entitlement to death and indemnity compensation (DIC) benefits. While the appellant did not submit a formal substantive appeal in response, her representative submitted a statement in January 2017 clearly expressing intent to continue appealing the accrued benefits claim, but omitting the DIC claim. Therefore, the Board accepts that correspondence in lieu of a formal substantive appeal and assumes jurisdiction over the accrued benefits claim as well. However, the DIC appeal has not been perfected and is not before the Board at this time. FINDINGS OF FACT 1. The Veteran's service personnel records reasonably show, and indeed the August 2013 remand conceded, that the Veteran served aboard the U.S.S. Conquest in June 1967, during which time it was anchored in Da Nang harbor on June 19, 1967; a Joint Services Environmental Support Group (JSESG) Exposure Report in the record indicates that the U.S.S. Conquest was exposed to Agent Orange spray on June 19, 1967; the negative November 2016 formal finding regarding exposure does not rule out exposure and erroneously indicates that there is no evidence in the Veteran's file to substantiate exposure without discussing the significance of the explicit findings of the JSESG report; and the Veteran's death certificate lists lung and prostate cancer as contributing factors to death. 2. A claim seeking compensation based on the need for regular aid and attendance or housebound status was pending at the time of the Veteran's death; she filed a timely claim seeking accrued benefits in November 2008, within a year of his death. 3. The appellant has not provided any information bearing upon her or the Veteran's income or net worth, and there is no other information in the record pertaining to such matters; thus, there is no basis for granting entitlement to income-based nonservice-connected pension (NSCP) benefits based on the need for regular aid and attendance or housebound status. 4. The Veteran was only service-connected for anxiety neurosis, rated 30 percent, during his lifetime; there is no evidence that such disability rendered him so disabled as to be in need of regular aid and attendance or housebound. CONCLUSIONS OF LAW 1. Resolving all remaining reasonable doubt in the Veteran's favor, service connection for the cause of the Veteran's death is presumptively warranted based on exposure to herbicide agents during service in the Vietnam era. 38 U.S.C. §§ 1310, 5107 (2014); 38 C.F.R. §§ 3.102, 3.302, 3.304, 3.307, 3.309 (2017). 2. Compensation based on the need for regular aid and attendance or housebound status for accrued benefits purposes is not warranted. 38 U.S.C. §§ 1110, 1114, 1521, 1522, 5107, 5121 (2014); 38 C.F.R. §§ 3.102, 3.277, 3.303, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants the claim seeking service connection for cause of death, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Regarding the remaining claim, VA's duty to notify was satisfied by a July 2016 letter followed by readjudication in a November 2016 SOC. The appellant has had ample opportunity to respond and has not alleged that notice was less than adequate. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, the appellant's claim here is one seeking accrued benefits and is therefore adjudicated based on the evidence of record at the time of the Veteran's death. Critically, however, she has not identified any pertinent evidence that remains outstanding. Finally, a review of the record shows that the AOJ has substantially complied with the Board's August 2013 remand regarding the accrued benefits claim by sending the appellant the requisite VCAA-compliant notice in July 2016 and issuing an appropriate SOC in November 2016. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Upon the death of an individual receiving VA benefit payments, certain persons (to include the Veteran's spouse, if any) shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (a). For a claimant to be entitled to accrued benefits, the decedent must have had a claim pending at the time of death. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, an application for accrued benefits must be filed within one year after the death of the veteran. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Here, the appellant drafted, and the Veteran signed, a July 2008 statement opening a claim seeking benefits based on the need for regular aid and attendance and housebound status prior to his death in October 2008. That claim remained pending and his spouse filed an application for accrued benefits in November 2008. Thus, she meets the threshold requirements to qualify as a claimant for accrued benefits purposes. What remains for consideration is whether the Veteran was, indeed, entitled to the benefits sought based on the evidence of record at the time of his death. Veterans of a period of war who are permanently and totally disabled from nonservice-connected disability that is not the result of his or her willful misconduct are entitled to nonservice-connected pension benefits. Moreover, such Veterans are further entitled to a higher rate of pension if they are in need of regular aid and attendance or permanently housebound by reason of disability, but do not qualify for pension at the aid and attendance rate. 38 U.S.C. § 1521(a), (d), (e). However, crucially, the law imposes net worth limitations on payment of pensions. Specifically, 38 U.S.C. § 1522 provides that any pension will be denied or discontinued when the corpus of the estate of the Veteran or, if the Veteran has a spouse, the corpus of the estates of the Veteran and of the Veteran's spouse is such that it is reasonable that some part of the corpus of such estates be consumed for the Veteran's maintenance. In making this determination, the statute explicitly provides that VA must consider the annual income of the Veteran as well as any applicable spouse or children. In fact, VA may explicitly require from any applicant or recipient of pension "such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate" as a "condition of granting...pension." 38 C.F.R. § 3.277(a). In July 2016, the AOJ sent the appellant a letter informing her of how to substantiate the claim seeking nonservice-connected pension based on the need for regular aid and attendance or housebound status, to include the fact that such benefits are income-based. The letter also requested that she provide the requisite income information pursuant to 38 C.F.R. § 3.277. However, the appellant has not provided any such information, and there is no other evidence bearing upon her or the Veteran's income or the corpus of their estate at the time of his death. Absent such information, there is simply no basis for even approaching a substantive analysis in this matter. Thus, nonservice-connected pension based on the need for regular aid and attendance or housebound status for accrued benefits purposes is not warranted. Moreover, while the appellant has exclusively referred to the instant claim as involving nonservice-connected pension, the Board has nonetheless considered whether special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status due to service-connected disabilities were warranted, based on the evidence of record at the time of the Veteran's death. Such benefits are not income-based and include no net worth limitations. Under 38 U.S.C. § 1114(l), a Veteran who, as a result of service-connected disabilities, has suffered anatomical loss or loss of use of both feet or one hand and one foot, bilateral blindness (visual acuity of 5/200 or less), or who has such significant disabilities as to be in need of regular aid and attendance, is entitled to SMC. Similarly, 38 U.S.C. § 1114(s) provides that Veterans with service-connected disability rated as total and (1) additional service- connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of service-connected disability or disabilities, are permanently housebound, are also entitled to SMC based on such housebound status. A Veteran is considered "permanently housebound" when they are substantially confined to their house (or ward or clinical areas, if institutionalized) or immediate premises due to service-connected disabilities that are reasonably certain to remain throughout his lifetime. Id. While there is no pertinent evidence prior to the July 14, 2008 claim, correspondence from the Veteran's private doctor that month indicates he was diagnosed with head and neck, lung, and prostate cancer that had poor prognosis and life expectancy of around three to six months. His treatment had been further complicated by severe malnutrition, oxygen dependence, severe radiation pneumonia, being wheelchair-bound, and severe debility. As a result, the doctor felt the Veteran qualified for financial or physical assistance. In a contemporaneous statement, the appellant indicated that her husband was homebound and had to have visiting nurses provide home care. She also said he was on oxygen 24 hours a day and her doctor had recommended hospice care with three months to live. An October 2008 letter notes the Veteran was hospitalized with multiple cancers, hypertension, hypercholesteremia, gout, protein calorie malnutrition, and anemia. Furthermore, "[a]s a result of this multitude of conditions, [the Veteran's] overall prognosis is extremely poor." He also noted he suffered from arteriosclerosis obliterans and an amputation was recommended. Based on this evidence, the Board finds that the evidence establishes that the Veteran was, indeed, homebound and in need of regular aid and attendance for the months leading up to his death. However, such debility was due exclusively to nonservice-connected disabilities. In fact, a review of the record shows the only service-connected disability during the Veteran's lifetime was anxiety neurosis, rated 30 percent, and there is no evidence or allegation suggesting that anxiety or any psychiatric disability contributed to his need for regular aid and attendance or housebound status. Therefore, SMC under either 38 U.S.C. §§ 1114(l) or (s) is not warranted. In light of the above, the Board finds the preponderance of the evidence is against the appellant's appeal seeking compensation based on the need for regular aid and attendance or housebound status for accrued benefits purposes, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. ORDER Service connection for the cause of the Veteran's death is granted. Compensation based on the need for regular aid and attendance or housebound status, for accrued benefits purposes, is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs