Citation Nr: 1800279	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  14-02 926	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to payment in excess of the base payment rate for Dependency and Indemnity Compensation (DIC), plus any additional increases, under 38 U.S.C. § 1311 and 38 C.F.R. § 3.10.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to January 1986, to include service in the Republic of Vietnam.  He died in July 2012.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  A September 2012 notification letter reported that DIC was awarded in the amount of $1,195 per month.  The appellant perfected an appeal as to the amount of that benefit.

The Board notes that the appellant indicated she disagreed with a November 2012 rating decision's denial of the Veteran's claim for entitlement to a total disability rating based on individual unemployability (TDIU) in her January 2014 Form 9 substantive appeal.  In a March 2014 letter, the appellant was informed that the disagreement with the denial of the claim for TDIU was not timely and was notified how to appeal the determination if she disagreed.  The appellant did not appeal the determination within one year of the March 2014 notification letter.  As such, the Board will not further discuss the appellant's contentions that a higher payment amount is warranted due to the Veteran's entitlement to a TDIU.


FINDING OF FACT

The appellant is the surviving spouse of the Veteran with a service-connected death who was not receiving or entitled to receive compensation for service connected-disability rated as totally disabling for a continuous period of at least 8 years immediately preceding death; she has no dependents and is not housebound or in need of regular aid and attendance.

CONCLUSION OF LAW

The appellant is not entitled to a higher rate of DIC benefits.  38 U.S.C. §§ 1310; 1311 (2012); 38 C.F.R. §§ 3.5, 3.10, 3.21 (2017); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

The United States Court of Appeals for Veterans Claims (Court) has held that the Veterans Claims Assistance Act is inapplicable to matters of pure statutory interpretation such as this case.  See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  The facts of this case are not in dispute.  The Veteran and the appellant were married in November 1975 and remained married until his death in July 2012.  The appellant is recognized by VA as the Veteran's surviving spouse. 

In September 2012, the appellant was awarded DIC based upon the establishment of service connection for the cause of the Veteran's death.  In a September 2012 letter, she was notified by VA that her monthly rate would be $1,195.00, as the surviving spouse of a Veteran with a service-connected death pursuant to 38 C.F.R. § 3.5.  In September 2013, the appellant disagreed with the monetary amount of the DIC award.  She noted that the Veteran received both service-connected disability compensation and a pension that resulted in much higher monthly compensation and that it was difficult subsisting on the lower DIC payment.

When a veteran dies due to service-connected disability, VA may pay monthly DIC to a veteran's surviving spouse.  38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a).  The basic monthly DIC rate is the amount set forth in 38 U.S.C. § 1311(a)(1).  The total of the basic monthly rate may be increased by an additional amount under the following circumstances: (1) if the veteran at the time of his death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death; (2) if the surviving spouse has children under the age of 18 of the deceased veteran; (3) if the surviving spouse is determined to be in need of regular aid and attendance under the criteria in § 3.352 or is a patient in a nursing home; (4) or, if the surviving spouse is, by reason of disability, permanently housebound but does not qualify for the aid and attendance allowance.  38 U.S.C. § 1311(a)-(d); 38 C.F.R. § 3.10(c), (e). 

The Board concludes that the appellant is in receipt of the maximum amount allowable by law and is not entitled to an additional DIC award above the basic monthly rate.  Notably, the appellant does not contend, and the evidence does not suggest, that she has dependents, is housebound, or in need of regular aid and attendance.  Moreover, as noted above, the Veteran was not in receipt of a total rating for any service-connected disability prior to his death.  See 38 C.F.R. § 3.10(c); November 26, 2012, Rating Decision.  While the Board is sympathetic to the arguments presented by the appellant, the law is clear and precludes eligibility in this case.  As the law is dispositive, the claim must be denied due to the absence of legal merit.  Sabonis, 6 Vet. App. at 430.  The Board has no alternative but to deny the appellant's appeal as she does not meet the legal criteria for a payment in excess of the base monthly DIC entitlement amount.








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ORDER

Entitlement to payment in excess of the base payment rate for DIC, plus any additional increases, under 38 U.S.C. § 1311 and 38 C.F.R. § 3.10 is denied.




____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs