Citation Nr: 18144586 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-13 700 DATE: October 25, 2018 ORDER Entitlement to accrued benefits based on a claim of service connection for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection of prostate cancer for purposes of entitlement to accrued benefits is remanded. FINDING OF FACT The Veteran did not file a claim for service connection of diabetes mellitus, type II, prior to his death. CONCLUSION OF LAW The criteria for a grant of accrued benefits based on a claim of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.1, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to January 1981 with an additional 8 years, 28 days of unconfirmed active service. the Veteran died in April 2014. The appellant is the Veteran’s surviving spouse, who successfully substituted as appellant on his claims pending at the time of the Veteran’s death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota; and an October 2014 decision letter issued by the VA Pension Management Center (PMC), also in St. Paul. 1. Entitlement to accrued benefits based on a claim of service connection for diabetes mellitus, type II, is denied. The appellant seeks service connection for diabetes mellitus, type II, for purposes of entitlement to accrued benefits. The Board finds that the claim should be denied. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a veteran, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6). In short, if a Veteran had a claim pending at the time of his death, which is later found to have merit, then any funds owed to the Veteran at the time of his death as a result of that grant may be later claimed by a qualifying individual, such as a surviving spouse. The Board does not contest that the appellant, as the Veteran’s surviving spouse, would be eligible to take any accrued benefits, presuming those benefits existed at the time of the Veteran’s death. However, the Board finds that the claim of accrued benefits for diabetes mellitus must be denied because the Veteran did not have a pending claim of service connection of diabetes at the time of his death. This case has a slightly complicated procedural history. Shortly before his death, the Veteran’s representative submitted a claim of service connection in which he stated “I intend that this claim for compensation include all disabilities or medical conditions that the veteran has. I have listed below the current symptoms I am aware of, but please take into account that the veteran may suffer from medical conditions I am not aware of.” The representative then listed the following disabilities and symptoms: (1) ischemic heart disease secondary to agent orange exposure; (2) prostate cancer secondary to agent orange exposure with severe bladder incontinence; (3) a skin disorder/melanoma of the bilateral hands, arms, nose, and back, secondary to agent orange and sun exposure. No mention was specifically made of diabetes mellitus. No medical records were submitted with that claim On March 11, 2014, the RO sent a Veterans Claims Assistance Act (VCAA) notice acknowledging the claims of service connection for ischemic heart disease, prostate cancer/incontinence, and a skin disorder/melanoma, and requested additional evidence pertaining to these claims. On March 17, 2014, VA was made aware of the Veteran’s death that occurred on March 10, 2014. Because the Veteran died prior to the adjudication of his claims, the appellant substituted on the pending claims for purposes of accrued benefits (she also filed claims for burial benefits and dependency and indemnity compensation (DIC) benefits which are not presently on appeal). In August 2014, the RO issued a rating decision which granted service connection for the cause of the Veteran’s death, thereby granting DIC benefits; established eligibility for Dependents’ Educational Assistance; and denied service connection of ischemic heart disease, prostate cancer, and melanoma, all three for accrued purposes only. The appellant filed a notice of disagreement of October 1, 2014, with the rating decision, specifically asking for an earlier effective date for a grant of service connection of diabetes mellitus. On October 6, the appellant’s representative submitted a letter withdrawing that notice of disagreement because it was sent in error. The representative explained that the appellant, in fact, wished to file a notice of disagreement with the denial of service connection of prostate cancer for accrued purposes (that notice of disagreement is addressed in the below remand). On October 16, 2014, the PMC sent the notification letter on appeal here stating that the October 1, 2014, notice of disagreement, which the appellant, via her representative had already withdrawn, could not be accepted because the Veteran did not have a pending claim for diabetes mellitus at the time of his death. On October 20, 2014, the appellant’s representative submitted a new notice of disagreement, this time disagreeing with the October 16, 2014, letter finding that the Veteran did not have a pending claim for diabetes at the time of his death. It is that finding in the October 16, 2014, letter which is on appeal at this time. As noted above, the Veteran’s representative filed a claim in September 2013 requesting service connection of any disability the Veteran presently had, and listing three specific disabilities (prostate cancer, heart disease, and melanoma). During the pendency of this appeal, VA amended it regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). Prior to this change, a “claim” was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. §3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The intent to apply for benefits is essential to any claim and therefore, absent intent, no claim for entitlement exists. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, either formal or informal, must be in writing in order for it to be considered a “claim” for benefits within the meaning of the law. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). A claimant without medical expertise is not expected or required to precisely name the disability for which he seeks service connection, rather VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant’s description of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Nonetheless, an informal claim must identify the benefits sought, implying that there must be at least some description of the disability for which the claimant seeks service connection. The United States Court of Appeals for Veterans Claims (Court) has held that a claim includes all disabilities that may be reasonably encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). For example, a claim for posttraumatic stress disorder (PTSD) with symptoms of depression and anxiety may be construed by VA to include a claim for any acquired psychiatric disability which may reasonably be encompassed by the symptoms the claimant has attributed to PTSD, even though the claimant does not ultimately have a diagnosis of PTSD. In such a case, the claimant could not be granted service connection for PTSD because there is no diagnosed disability, but if his symptoms do result in another diagnosis, such as depressive disorder, a claim for depressive disorder could be inferred. However, in such a case, that claim for service connection of depressive disorder is based on the evidence of record and the claimant’s identified symptoms which VA could reasonably construe as to include such a disability. In this case, the Board must conclude that the September 2013 claim did not include a claim for diabetes mellitus, type II. Although that claim filed at that time (in addition to specifying the disabilities of ischemic heart disease, prostate cancer with incontinence, and melanoma/skin disorder) did state that it included “all disabilities the Veteran has,” it did not provide any description or list of symptoms which could be attributed to diabetes or any other disability beyond the three issues identified. Further, at no point did the Veteran or his representative submit any type of medical records or documentation in support of this claim from which VA could imply a claim for diabetes. In fact, to date, there is no medical evidence available from which VA could determine the Veteran was ever diagnosed with diabetes prior to his death. Absent some type of description of symptoms attributable to diabetes or any evidence implying that diabetes was intended to be included in the September 2013 claim, VA could not possibly infer that a claim of service connection for diabetes was ever filed. If the Veteran truly wished to claim diabetes, he or his representative should have submitted enough evidence that such a claim could be inferred. In this case, there was simply no evidence submitted from which VA could possibly infer a claim of service connection for diabetes. In light of the above, the Board must deny entitlement to accrued benefits based on a claim of service connection for diabetes mellitus, as there was no claim pending at the time of the Veteran’s death, and therefore no funds could accrue from such a claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection of prostate cancer for purposes of entitlement to accrued benefits is remanded. Regarding the claim of entitlement to service connection of prostate cancer for accrued benefits purposes, the appellant successfully substituted as appellant on the service connection claims pending at the time of the Veteran’s death. She submitted a timely notice of disagreement contesting the denial of service connection for prostate cancer in the August 2014 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: (Continued on the next page)   Send the appellant and her representative a statement of the case that addresses the issue of service connection of prostate cancer for purposes of entitlement to accrued benefits. If the appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel