Citation Nr: 1801691 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-34 409 ) 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 dependency and indemnity compensation under 38 U.S.C. § 1318 (2012). 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 2005. He passed away in July 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The case was certified to the Board by the Regional Office (RO) in Seattle, Washington. In October 2016, a travel board hearing was held before the undersigned sitting at the RO in San Diego, California. The record was held open for 30 days for the submission of additional evidence. This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 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 (AOJ). FINDINGS OF FACT 1. The Veteran was in receipt of a combined 100 percent schedular rating from May 20, 2008 to the time of his death in July 2012. 2. The Veteran was not continuously rated as totally disabled for a period of at least 10 years prior to his death. 3. There were no claims pending at the time of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for dependency and indemnity compensation under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). 2. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Analysis Dependency and Indemnity Compensation Under 38 U.S.C. § 1318, a surviving spouse may be entitled to dependency and indemnity compensation in the same manner as if the veteran's death were service-connected, under certain specific conditions. VA shall pay dependency and indemnity compensation under 38 U.S.C. § 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or "entitled to receive" compensation for a service-connected disability rated totally disabling provided, in pertinent part, that the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b)(1); 38 C.F.R. § 3.22. At the time of the veteran's death, service connection was in effect for fecal incontinence, residuals of a chronic left ankle navicular fracture with left lower extremity radiculopathy, lumbar spine degenerative arthritis, left hip tendonitis, urinary retention, bilateral plantar fasciitis, and onychomycosis of both great toes. The combined rating was 70 percent from September 1, 2005 and 100 percent from May 20, 2008. On review, a total disability rating was in effect from May 20, 2008 to the time of the Veteran's death in July 2012, a period of a little more than 4 years. As such, the evidence shows that the Veteran was not continuously rated totally disabled for a period of at least 10 years prior to his death. The Board further notes that the Veteran was neither rated totally disabled for a period of not less than 5 years from the date of his discharge from active duty in August 2005, nor was he a prisoner of war with a total disability rating for a period of not less than one year immediately preceding death. Thus, the provisions of 38 U.S.C. § 1318(b)(2), (3) are not for application. The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. Accordingly, entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318 is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accrued Benefits Upon the death of a veteran a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of his death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. §3.1000. An application for accrued benefits must be filed within one year after the date of death. A claim for dependency and indemnity compensation is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000(c). In this case, the appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension, in August 2012, and her application was timely. A claim for VA benefits must also have been pending on the date of death. This means 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 August 2012, VA received an examination for housebound status or permanent need for regular aid and attendance. This evidence was not received until after the Veteran's death. As such, it cannot be considered as a claim pending on the date of death. Prior to that, the most recent claims were withdrawn in January 2011 and this withdrawal was acknowledged by the RO in August 2011. On review, the Veteran did not have any claims pending on the date of his death. Hence, entitlement to accrued benefits is denied as a matter of law. See Sabonis. ORDER Entitlement to dependency and indemnity compensation benefits under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. REMAND The Certificate of Death lists the Veteran's primary cause of death as glioblastoma multiforme. The interval between the onset of the disease and the date of the Veteran's death was listed as "years." The appellant contends the cause of the Veteran's death is related to service. At her October 2016 hearing the appellant testified that the Veteran was diagnosed in approximately April 2011 by Dr. S. at the University of Washington in Seattle. Thereafter, he was treated by Dr. H.F. at Duke University and then at Harrison Hospital in Bremerton. These records are not contained in the claims folder and efforts should be made to obtain them. See 38 C.F.R. § 3.159(c)(1). At the hearing, the appellant also reported that the Veteran had numerous symptoms during service such as passing out spells or falling asleep, severe headaches, memory issues, neck pain, erratic moods and left-sided complaints, to include extremity numbness and a droopy eyelid. She indicated she had pictures showing the eyelid issue and the record was held open for her to submit the photographs. To date they have not been received. The appellant should be offered another opportunity to submit them. The appellant contends that the Veteran's symptoms during service were early manifestations of his brain tumor. In a September 2014 statement, she stated that Dr. F. called her and said the Veteran may have had a low grade tumor in his brain before the glioblastoma became present. At the hearing, she testified that Dr. F. said it was possible the Veteran had a benign tumor that went undiagnosed during service. Review of the Veteran's service records shows he was treated in November 1994 for a seizure. Records subsequent to this date show complaints of headaches and hemisensory disturbances. Considering these complaints, as well as the appellant's contentions, the Board finds that a VA medical opinion is needed. See 38 C.F.R. § 3.159(c)(4). In the alternative, the appellant contends that the Veteran's brain tumor was related to in-service ionizing radiation exposure. Service records show the Veteran was a submariner and include information showing a lifetime exposure of .034 rem. See Records of Occupational Exposure to Ionizing Radiation. A brain tumor is a radiogenic disease and development pursuant to 38 C.F.R. § 3.311(2017) is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and ask her to provide an authorization for release of medical records from all private providers who treated the Veteran for glioblastoma multiforme, to include Dr. S. at the University of Washington Medical Center; Dr. H.F. at Duke Medical Center; and Harrison Medical Center in Bremerton, Washington. If properly completed authorizations are received, these records must be requested pursuant to 38 C.F.R. § 3.159(c)(1) (2017). 2. Contact the appellant and ask her to submit any in-service photographs of the Veteran which show a droopy left eyelid. 3. Thereafter, request a medical opinion from a VA oncologist. The electronic claims folder must be available for review. The oncologist is to review the VBMS and Virtual VA files and opine whether it is at least as likely as not a brain tumor was present during active service. In making this determination, the examiner is to discuss whether the symptoms the Veteran experienced during service (to include a seizure, headaches, and left-sided complaints) were prodromal symptoms of the later diagnosed glioblastoma multiforme. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. If the above opinion is negative, then develop the claim pursuant to the provisions of 38 C.F.R. § 3.311 (2017). Specifically, the AOJ should forward the Veteran's Records of Occupational Exposure to Ionizing Radiation to the Under Secretary for Health for a dose estimate. The case must then be referred to the VA Under Secretary for Benefits for further consideration. 5. Upon completion of the requested development and any additional development deemed appropriate, readjudicate the claim of entitlement to service connection for the cause of the Veteran's death. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case and an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States 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. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs