Citation Nr: 1801792	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  16-24 616A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Pension Center in 
St. Paul, Minnesota


THE ISSUE

Entitlement to accrued benefits. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel



INTRODUCTION

The Veteran served on active duty from February 1947 to March 1978 and from March 1950 to January 1970.  He died in November 2013.  

This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  Jurisdiction of the appeal has since been transferred to the RO St. Paul, Minnesota

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2014).


FINDING OF FACT

The Veteran did not have any claims pending at the time of his death.


CONCLUSION OF LAW

The criteria for payment of accrued benefits have not been met.  38 U.S.C. § 5121A (2014); 38 C.F.R. §§ 3.1 (p), 3.155(a), 3.1000 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017).  Regarding entitlement to accrued benefits, the facts are not in dispute.  In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165   (2001), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  The Board finds that such is the case here.  Application of pertinent provisions of the law and regulations will determine the outcome.  No amount of additional evidentiary development would change the result of this case.  Therefore, VCAA notice is not necessary.  See also Mason v. Principi, 16 Vet. App. 129, 132   (2002) [VCAA not applicable 'because the law as mandated by statute, and not the evidence, is dispositive of the claim'].

Analysis

Upon the death of an individual receiving VA benefit payments, certain persons 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.  See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a).

Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the veteran.  See 38 C.F.R. § 3.1000 (a).

The appellant contends in an April 2016 statement that the Veteran applied for help at the Fresno VA hospital in Fresno, California in 2001, and that he was not notified of a decision until July 2002.  She indicated that she had enclosed medical records from the Veteran's heart and kidney doctors.  Thus, it appears that the appellant is claiming that accrued benefits are warranted based on an informal or inferred claim for service connection for coronary atherosclerosis and chronic kidney disease, shown in the enclosed medical records.  

A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits.  38 C.F.R. §§ 3.1 (p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.1 (p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).  The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2017).

The Veteran served in the Republic of Vietnam during the Vietnam Era.  Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309 (e) to add, in pertinent part, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina) to the list of diseases associated with exposure to certain herbicide agents.  See 75 Fed. Reg. 53,202. The intended effect of this amendment was to establish presumptive service connection for these diseases based on herbicide exposure.  Note 3 indicates that, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  38 C.F.R. § 3.309 (e). The final rule is applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date.

VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in Nehmer (Nehmer Stipulation). 

Under Nehmer, a claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  See 38 C.F.R. § 3.816 (c)(2). 

After a review of all the evidence of record, lay and medical, the Board finds that, the Veteran did not have any claims pending at the time of his death, to include any pending claims for service connection for a heart disorder or a kidney condition.  The Board finds that there was no correspondence received by VA prior to the date of the Veteran's death in November 2011 that can be construed as a claim for service connection for a heart disorder, to include coronary atherosclerosis, or a kidney condition.  There is no evidence of any act or intention on the part of the Veteran of filing a claim for service connection for a heart disorder or a kidney condition.  The Board finds that nothing in the record can be reasonably viewed as such a claim for service connection.  While the appellant made reference to claims filed at VA in 2001, those claims for service connection for bilateral hearing loss, tinnitus, and a right leg condition were adjudicated by the RO in July 2002, and the Veteran did not appeal that decision.  Moreover, VA treatment records did not identify a chronic heart or kidney condition at that time.  While the appellant more recently submitted private treatment records showing diagnoses of coronary atherosclerosis and chronic kidney disease, there was no evidence of these disabilities shown in the record prior to the Veteran's death. 

For these reasons, the Board finds that, at the time of his death, the Veteran did not have a pending claim for service connection for a heart disorder or kidney condition, and no other pending claims are shown by the record.  A review of the evidence of record does not reflect anything that would constitute an informal or inferred claim for service connection.  Accordingly, the appeal for accrued benefits is without legal merit and must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


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ORDER

Entitlement to accrued benefits is denied. 




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs