Citation Nr: 1718917	
Decision Date: 05/30/17    Archive Date: 06/06/17

DOCKET NO.  98-08 096	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a higher Dependency and Indemnity Compensation (DIC) rate under 38 U.S.C.A. § 1311(a)(2).


REPRESENTATION

Appellant represented by:	Sandra E. Booth, Attorney


ATTORNEY FOR THE BOARD

David Gratz, Counsel



INTRODUCTION

The Veteran had active service from December 1943 to August 1946, including combat service at Iwo Jima in World War II.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1998 and September 2006 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO).

In a March 1998 notice of disagreement, the appellant requested that she be scheduled for a hearing at the regional office.  The Board remanded the appeal in August 1999.  The appellant withdrew her request for a hearing in October 1999.

In June 2004, the Board denied the appellant's claims of entitlement to service connection for accrued purposes.  The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as it denied her claims of entitlement to service connection for accrued purposes.  In a February 2007 Memorandum Decision, the Court vacated the Board's June 2004 decision finding that the Board provided inadequate reasons and bases for its rejection of the medical opinion of Dr. Williams and remanded the claims for further consideration consistent with the decision.  The Board remanded the claims in October 2007.

The Board denied the appellant's claim for entitlement to a higher DIC rate under 38 U.S.C.A. § 1311(a)(2) in a February 2012 decision.  The appellant again appealed to the Court and, in a January 2014 Memorandum Decision, the Court vacated the February 2012 Board decision because the issue was inextricably intertwined with a motion to find clear and unmistakable error (CUE) in the Board's October 1985 decision denying compensation for an acquired psychiatric disorder.  In November 2014, the Board dismissed the motion to find CUE, and remanded the issue of entitlement to a higher DIC rate under 38 U.S.C.A. § 1311(a)(2).


FINDING OF FACT

The Veteran was not rated totally disabled due to a service connected disability for a continuous period of at least eight years immediately preceding his death in November 1997.


CONCLUSION OF LAW

The criteria for enhanced DIC have not been met. 38 U.S.C.A. §§ 1131(a)(2), 1311, 1318 (West 2014); 38 C.F.R. § 3.5, 3.21 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran died in November 1997, and the appellant is in receipt of DIC benefits based upon her claim for service connection for the cause of the Veteran's death.

DIC is payable to a Veteran's surviving spouse when the Veteran dies from a service-connected disability.  38 U.S.C.A. §§ 1310, 1311 (West 2014); 38 C.F.R. § 3.5(a) (2016).  38 C.F.R. § 3.10(b) provides that the basic monthly rate of DIC for a surviving spouse will be the amount specified in 38 U.S.C.A. § 1311(a)(1) corresponding to the Veteran's pay grade in service.  The basic monthly rate will be increased by the amount specified in 38 U.S.C.A. § 1311(a)(2) if the Veteran at the time of his death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least eight years immediately preceding death.  38 C.F.R. § 3.10(c).

Through her representative, the appellant contends in statements dated, inter alia, April 2016, March 2016, September 2014, May 2011, and May 2005 that the Veteran's service-connected PTSD was totally disabling for at least 8 years prior to his death.  In April 2016, the appellant's representative asserts that the Veteran should have been assigned an effective date prior to December 1995 for service connection for PTSD.

The Veteran died in November 1997.  The only service-connected disability for which the Veteran was in receipt of service connection for 8 years or more prior to November 1997 was urethritis, for which he received a 10 percent disability rating as of January 14, 1952.  There is no competent and credible evidence of record showing that the Veteran's urethritis rendered him totally disabled.

With respect to PTSD, the Veteran was in receipt of service connection for PTSD as of December 27, 1995-less than the 8 years prior to death that is required for enhanced DIC under 38 U.S.C.A. § 1311(a)(2).  In November 2014, the Board, in compliance with the Court's January 2014 Memorandum Decision, remanded this claim in order for the RO to perform its duty to establish the effective date of service connection for PTSD.  In April 2016, the RO issued a supplemental statement of the case (SSOC) wherein it found that an effective date earlier than December 27, 1995 was not for application.  The RO specifically explained that an effective date of service connection for PTSD from February 1952-the date of a genitourinary examination wherein the Veteran presented "marked nervous tension" at his rectal examination-is not warranted because, as the April 2016 VA examiner opined, it is not unusual for people to be anxious or tense during such examinations.  As the RO's reasoning is consistent with April 2016 VA examiner's opinion, and as the December 1995 effective date assigned for service connection for PTSD is less than 8 years prior to the Veteran's November 1997 date of death, a higher DIC rate under 38 U.S.C.A. § 1311(a)(2) is not established.


ORDER

A higher rate of DIC benefits under the provisions of 38 U.S.C.A. § 1311(a)(2) is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs