Citation Nr: 18145527 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-18 840 DATE: October 29, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. At the time of death, the Veteran was not service-connected for any disability. 2. The Veteran's death certificate reflects that she died in February 2013 with a primary cause of arteriosclerotic cardiovascular disease. 3. Arteriosclerotic cardiovascular disease was not manifest during service or within one year of separation, and is not attributable to service. 4. The Veteran was not evaluated totally disabled for service-connected disability for 10 continuous years immediately preceding her death; was not totally disabled from the date of her discharge for a period of not less than 5 years immediately preceding her death; and was not a former prisoner of war (POW). 5. The Veteran was not "entitled to receive" total service-connected disability compensation by way of the eight possible exceptions listed under 38 C.F.R § 3.22(b). 6. At the time of her death, the Veteran did not have any pending claims for VA benefits. 7. The Veteran did not have the requisite wartime service to establish basic eligibility for VA nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.303, 3.307, 3.309, 3.312 (2015). 2. The criteria for DIC pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. §§ 3.22, 20.1106 (2017). 3. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017). 4. The criteria for eligibility for death pension are not met. 38 U.S.C. §§1501, 1521, 1541 (2012); 38 C.F.R. §§ 3.102, 3.2, 3.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to February 1976. She died in February 2013. The appellant is her surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Milwaukee, Wisconsin, which denied entitlement to DIC, entitlement to death pension, and entitlement to accrued benefits. Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving child of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). With regard to service connection, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. With respect to the current appeal, that list includes cardiovascular-renal disease. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. The death certificate lists the primary cause of death as arteriosclerotic cardiovascular disease. No other contributing cause is listed. The Veteran’s service treatment records reflect no complaint, finding, or diagnosis with respect to cardiovascular or heart disease. A Medical Evaluation Board report shortly prior to discharge notes diagnosis of left chondromalacia patella; no other physical findings were indicated. There are no post-service treatment records of record. As noted above, the Veteran was not service-connected for any disability at the time of her death. With regard to the presently nonservice-connected cause of death listed on his death certificate, arteriosclerotic cardiovascular disease, here there is no probative evidence of a nexus between arteriosclerotic cardiovascular disease and the Veteran's service. That is, service connection is not warranted for the cause of death listed on the Veteran's death certificate. The appellant has never specifically contended, and evidence does not otherwise establish, that the disability listed on the death certificate had its onset during the Veteran's active service many years ago. There is also no indication of onset of cardiovascular disease in service or within one year of discharge from service, or report of heart symptoms since service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). See Walker, 708 F.3d at 1336-40. Moreover, there also is no probative evidence (no nexus evidence) linking the Veteran's cause of death with her active service. Holton, 557 F.3d at 1366. Finally, with regard to lay evidence, in certain instances lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009). The appellant has generally asserted that the stress of the Veteran’s service could have led to her later development of heart disease. In this case, the probative value of the appellant's general assertions in this regard is outweighed by evidence discussed above indicating no relationship between the cause of the Veteran’s death and her service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). DIC under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s surviving spouse or children in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was “entitled to receive,” compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). As discussed above, the Veteran died in February 2013. The Veteran was not service-connected for any disability at the time of her death, and she had never filed a claim for compensation benefits during her lifetime. In other words, the Veteran was not continuously rated as totally disabling (100 percent) for the 10 years immediately preceding her death. She also did not have total disability (100 percent) for at least five years from the date of her separation from service. Furthermore, there is no indication or allegation that she was a former POW. Therefore, the Board finds that entitlement to 38 U.S.C. § 1318 benefits are not met on this basis. Although the Board is sympathetic to the appellant’s assertions, any potential claim based on “hypothetical entitlement” is now barred as matter of law, no matter when the DIC claim for benefits was filed. Rodriguez, 511 F.3d at 1156. Here, the appellant filed his claim for DIC benefits pursuant to 38 U.S.C. § 1318 in February 2013. In any event, as decided in Rodriguez, the January 2000 changes to 38 C.F.R. § 3.22 are retroactively applicable and bar recovery on the hypothetical entitlement theory, irrespective of when the § 1318 DIC claim was filed. Accordingly, in as much as the appellant has asserted a claim based on “hypothetical entitlement,” the Board concludes any theory of hypothetical entitlement is barred in the present case pursuant to the applicable regulation, 38 C.F.R. § 3.22, as well the Federal Circuit’s holdings in Rodriguez. It follows that, because any proffered theory of hypothetical entitlement for § 1318 benefits is barred as a matter of law, the appellant can only establish entitlement to § 1318 benefits if she shows that the Veteran was “entitled to receive” total disability compensation by way of one of the eight possible exceptions listed under 38 C.F.R. § 3.22(b)(1)-(3). However, there is no allegation by the appellant or any evidence of record showing that he has met the criteria for any one of the eight exceptions listed under 38 C.F.R. § 3.22(b). In this regard, there are no previous Board or RO rating decisions, and thus there has been no allegation or evidence of CUE in any prior decision, nor has the appellant or her representative identified any other basis for granting the § 1318 claim. 38 C.F.R. § 3.22(b)(1). In addition, the appellant has not submitted additional service department records that would provide a basis for reopening a previous claim and awarding a total service-connected disability retroactively. 38 C.F.R. § 3.22(b)(2). Moreover, the appellant also does not meet any of the remaining six exceptions listed under 38 C.F.R. § 3.22(b)(3)(i)-(vi). Specifically, there is no simply no indication that VA was paying the compensation to the Veteran’s dependents; VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; the Veteran had not waived retired or retirement pay in order to receive compensation; VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); VA was withholding payments because the Veteran’s whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b)(3). In short, there is no legal basis for granting the appellant’s claim pursuant to 38 U.S.C. § 1318. His claim for DIC benefits pursuant to 38 U.S.C. § 1318 would essentially be a claim for hypothetical entitlement, which is barred as a matter of law. Accordingly, the appellant’s claim under the provisions of 38 U.S.C. § 1318 must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). Entitlement to 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). A review of the record provides no evidence of a pending claim at the time of the Veteran's death in February 2013, 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 her 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. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to Death Pension The appellant asserts that he should be awarded nonservice-connected death pension benefits based on his spouse's service. Death pension is a benefit payable in certain circumstances to a veteran's surviving spouse because of the veteran's nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101 (8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3 (b)(4), 3.23(a)(5), (d)(5). VA presently recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2. In this case, the Veteran does not have the requisite active duty service during a period of war as recognized by VA. Specifically, the Veteran's only period of service from November 1975 to February 1976 took place subsequent to the Vietnam War era (August 5, 1964, through May 7, 1975), and prior to the Gulf War era (in effect since August 2, 1990). Id. The appellant does not contend, and the record does not otherwise reflect, that the Veteran had any additional periods of service. Further, there is no indication that, at the time of death, service connection was in effect for any disability, or that the Veteran was receiving or entitled to receive compensation or retirement pay for a service-connected disability. Consequently, there is no legal basis for the appellant's claim for nonservice-connected death pension. In order for the appellant to meet the basic service requirements for nonservice-connected death pension benefits, the evidence must establish that the Veteran served during a period of war. The Board is sympathetic to the appellant's claim; however, the facts clearly show that the Veteran did not serve on active duty during a period of war as recognized by VA. As such, eligibility for nonservice-connected death pension benefits is denied as a matter of law because the Veteran did not have any wartime active duty service. Sabonis v. Brown, Vet. App. 426, 429. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel