Citation Nr: 1803940	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-10 868A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Milwaukee VA Pension Center


THE ISSUES

1.  Entitlement to service connection for cause of death.

2.  Entitlement to death pension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Arnold, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to February 1972, with additional periods of National Guard service.  The Veteran served in the Republic of Vietnam.  The Veteran died in December 1986.  The appellant claims as the Veteran's surviving spouse.

This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. 

The appellant was scheduled for a Travel Board hearing before a Veteran's Law Judge in October 2016 but submitted a request that the hearing be postponed due to illness.  Another hearing was scheduled for October 2017 but the appellant did not appear.

The issue of entitlement to service connection for cause of 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 died in December 1986.

2.  The appellant remarried in July 2002.  That marriage was terminated by death in August 2004.  





CONCLUSION OF LAW

The appellant is not considered a "surviving spouse" for the purposes of death pension benefits.  38 C.F.R. §§ 3.50, 3.55. 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2017). 

Here, however, the notification and assistance provisions are not applicable, as entitlement to death pension benefits cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).


Death Pension

VA pays non-service-connected death pension to the surviving spouse of a veteran of a period of war who at the time of his death was receiving or entitled to receive compensation or retirement pay for a service-connected disability.  38 U.S.C. § 1541; 38 C.F.R. § 3.3.  

A "veteran" is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d).  

A "surviving spouse" is a person who was the spouse of the Veteran at the time of the Veteran's death and who has not remarried.  38 C.F.R. § 3.50(b).  Remarriage is not a bar to benefits for surviving spouses who remarry but whose remarriage was terminated by death or dissolution prior to November 1, 1990.  38 C.F.R. § 3.55(a)(2).

The Board's review of the record indicates that the appellant remarried in July 2002 and that marriage was terminated by her spouse's death in August 2004.  As the remarriage and its termination by death did not occur prior to November 1990, the exception in 38 C.F.R. § 3.55(a)(2) is inapplicable.  Therefore, the Board finds that the appellant cannot be considered a surviving spouse for the purposes of death pension benefits.  38 C.F.R. § 3.50(b)(2).


ORDER

Entitlement to death pension is denied.


REMAND

The Board finds that additional development is necessary prior to adjudicating the issue of entitlement to service connection for cause of death.  

Active military, naval, and air service includes active duty and any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty.  38 C.F.R. § 3.6(a).  National Guard service may include periods of both ACDUTRA and INACDUTRA.  38 C.F.R. §§ 3.6(c)(3), (d)(4).

The Veteran's cause of death, as listed on his death certificate, was a metastatic brain tumor.  Medical records associated with the claim file indicate that the Veteran was treated for a brain tumor during the period when he was serving in the Indiana Army National Guard.  Although the AOJ obtained partial records pertaining to the Veteran's Army National Guard service, these records do not confirm the Veteran's periods of active duty, ACDUTRA and INACDUTRA.  As a period of ACDUTRA or INACDUTRA during which the Veteran becomes disabled constitutes active service, the Board finds that remand is required to confirm the Veteran's periods of ACDUTRA and INACDUTRA.  38 C.F.R. § 3.6(a).

The appellant contends that the Veteran's brain tumor was caused by exposure to Agent Orange.  The Board's review of the record indicates that service in the Republic of Vietnam has been conceded but that no VA medical opinion has been obtained regarding the etiology of the Veteran's brain tumor.  A medical opinion should therefore be obtained upon remand.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's complete treatment records from his Indiana Army National Guard service, to include making a request to the National Personnel Records Center (NPRC) and any other appropriate entity.  All records and responses received should be associated with the claim file.  If this information is unavailable, all efforts to obtain it should be documented in the claim file.  

2.  Verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the Indiana Army National Guard.  Verify the dates and type of service (e.g., active duty, ACDUTRA, INACDUTRA).  If this information is unavailable, all efforts to obtain it should be documented in the claim file.  

3.  Obtain a VA medical opinion to determine the etiology of the Veteran's brain tumor.  The examiner should review the claim file and provide a complete rationale for all opinions expressed.  

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain tumor was caused or aggravated by the Veteran's active service, to include the conceded exposure to herbicide agents, namely, Agent Orange.  

4.  The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.

5.  If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.


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 matter must be afforded expeditious treatment.  The law requires that all issues 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).




______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs