Citation Nr: 1803645	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-38 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to Dependency and Indemnity Compensation (DIC), on the basis of entitlement to service connection for the cause of the Veteran's death.

2.  Entitlement to accrued benefits.

3.  Recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of VA death pension benefits.


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney



WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. T. Brant, Counsel


INTRODUCTION

The Veteran served on active duty from January 1961 to January 1965.  He died in July 2010.  The appellant was married to the Veteran at the time of his death.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The appellant testified at a Video Conference hearing in November 2017 before the undersigned Veterans Law Judge.  A transcript of the proceeding has been associated with the claims file.

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) (2012).

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.  At the time of his death, the Veteran did not have any claims for VA benefits pending.

2.  The appellant and the Veteran married in March 1968.

3.  The Veteran died in July 2010; according to his death certificate, he and the appellant were married at the time of his death.

4.  The appellant remarried in June 2011 and this marriage has not been terminated.


CONCLUSIONS OF LAW

1.  The appellant has no legal entitlement to accrued benefits.  38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017).

2.  The criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of death pension benefits have not been met.  38 U.S.C. §§ 101, 1102, 1304, 1541 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.54, 3.55 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Regulations governing VA's duties to notify and assist claimants are not applicable where, as here, the law is dispositive and the claims involve no factual dispute.  See Mason v. Principi, 16 Vet. App. 129 (2002).

II.  Accrued Benefits

Periodic monetary benefits to which a veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits."  38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). 

For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death.  38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

Only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits.

A review of the record provides no evidence of a pending claim at the time of the Veteran's death in July 2010, and the appellant has not made a specific argument asserting that there was such a pending claim.

Therefore, because the record shows that the Veteran did not have any type of claim pending at the time of his death, there are no possible accrued benefits that could be paid to the appellant.  See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998).

In sum, the appellant has no legal basis for entitlement to accrued benefits because there was no pending claim at the time of the Veteran's death on which the appellant's accrued benefits claim could be based.  38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. 

As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  

III.  Death Pension

The appellant seeks death pension benefits as the surviving spouse of the Veteran.  However, prior to a determination regarding entitlement to VA benefits, a threshold determination must be made as to whether the appellant qualifies as the Veteran's surviving spouse for the purpose of VA death pension benefits.

A "surviving spouse" is defined as a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person.  38 C.F.R. § 3.50(b).

The remarriage of a surviving spouse shall not bar the furnishing of benefits, including death pension benefits, to such surviving spouse if the marriage was void or annulled.  In addition, on or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage has been terminated by death, or has been dissolved by a court with basic authority to render divorce decrees, unless VA determines that the divorce was secured through fraud by the surviving spouse or by collusion.  38 C.F.R. § 3.55(a).

The relevant facts in this case are not in dispute.  The record demonstrates that the appellant and the Veteran married in March 1968.  The Veteran died in July 2010, and, according to his death certificate, was married to the appellant at the time of his death.  The appellant remarried in June 2011 and this marriage has not been terminated.  

The appellant does not contend, nor does the record reflect, that her marriage following the Veteran's death has been voided, annulled, or dissolved by court decree.  Rather, she indicated that this marriage has not been terminated.  See Section 22C. on her Application for DIC, death pension, and/or accrued benefits dated in December 2013.  Consequently, under the applicable regulations, there is no legal basis for the appellant's claim.  See 38 C.F.R. §§ 3.50, 3.55.  

In sum, to receive death pension benefits, the appellant must first qualify as a surviving spouse.  As the appellant remarried after the Veteran's death, and because the evidence shows this marriage has not been voided, annulled, or dissolved by court decree, the appellant may not be recognized as the Veteran's surviving spouse under the governing laws and regulations.  The claim must therefore be denied as a matter of law.


ORDER

Entitlement to accrued benefits is denied.

Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of VA death pension benefits is denied.

REMAND

The Veteran died in July 2010 and the appellant is his surviving spouse for purposes of his DIC claim.  See 38 C.F.R. § 3.55(a)(10)(ii).  The Veteran's death certificate lists the cause of death as cardiorespiratory arrest contributed by sepsis, immune suppression, multiple myeloma, and amyloidosis.  The Veteran's service treatment records are negative for findings related to any of these conditions.  The Veteran's military personnel records and Department of Defense Form 214 show that he served as a machinist mate aboard the USS CORRY, the USS ABBOT, and the USS BORIE, and that he completed training in air conditioning and refrigeration.

The appellant has raised several theories in support of her claim for entitlement to service connection for the cause of the Veteran's death.  In particular, the appellant contends that the Veteran's duties as a machinist mate on destroyers in the Navy required him to work in the engine room and below deck, where he was exposed to fuel, oil, and refrigerant contaminants such as Freon.  See November 2017 hearing testimony.  The appellant contends that the Veteran's exposure to these toxins during service led to the development of his myeloma cancer which caused his death.

In light of the foregoing and under the duty to assist, the Board finds that remand for an opinion is warranted.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.   Refer the claims file to a suitably qualified VA
   examiner for a medical opinion to address the cause of 
the Veteran's death.  The examiner is asked to review all pertinent records associated with the claims file, including a copy of this remand.  

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cause of death was causally or etiologically related to his service, to include any exposure to toxins therein.

In rendering this opinion, the examiner should discuss the appellant's assertions that the Veteran's exposure to toxins during service from fuel, oil, and refrigerant contaminants such as Freon led to the development of his myeloma cancer, which caused his death.

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

2.   Conduct any other appropriate development deemed 
necessary.  Thereafter, readjudicate the claim, considering all evidence of record.  If the benefit sought remains denied, the appellant and her representative must be provided a supplemental statement of the case.  An appropriate period of time must be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter 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).





______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs