Citation Nr: 18145796 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-27 371 DATE: October 30, 2018 ORDER Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT At the time of the Veteran’s death, there was no previous rating decision entitling the Veteran to benefits that were due and unpaid, nor was VA in receipt of evidence at the time of the Veteran’s death that would have entitled the Veteran to unpaid compensation. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been satisfied. 38 U.S.C. § 5121(a)(1); 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1971 to July 1973. The Veteran died on July [redacted], 2012. The Claimant is his widow from a marriage deemed valid under VA laws and regulations. 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. The Claimant is therefore eligible to make a claim for the cause of the Veteran’s death and accrued benefits. 38 U.S.C. §§ 5121(a)(1); 38 C.F.R. §§ 3.312, 3.1000. A hearing was held via live video conference before the undersigned Veterans Law Judge (VLJ) in July 2017. A transcript of that hearing is associated with the claims file. 1. Entitlement to accrued benefits The law governing claims for accrued benefits provides that, upon the death of a veteran, his or her lawful spouse or a spouse deemed lawful under VA regulations may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based either on existing rating decisions or other evidence associated with the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In order to establish entitlement to accrued benefits, there must have been either a rating decision establishing entitlement to benefits or a pending claim for benefits at the time of the veteran’s death. Jones v. West, 136 F.3d 1296, 1299-1333 (Fed. Cir. 1998). Evidence establishing entitlement to accrued benefits includes only evidence that is physically or constructively in possession of VA at the time of the veteran’s death; additional evidence cannot be developed for the purposes of establishing entitlement to accrued benefits. Ralston v. West, 13 Vet. App. 108, 113 (1999), Hayes v. Brown,4 Vet. App. 353 (1993). Here, the Claimant cannot establish entitlement to accrued benefits. There was no rating decision establishing entitlement to benefits during the Veteran’s life and no pending claim for benefits or evidence entitling the Veteran to benefits at the time of his death. As it happens, the claims file establishes that there was no contact between VA and the Veteran, or anyone claiming benefits on his behalf, for the purposes of obtaining any sort of benefit between 1976, when the Veteran’s claim for education benefits was resolved, and August 2012, a month after the Veteran died. Notably, in the Claimant’s August 2012 application for benefits, she also indicated that the Veteran had not ever filed a claim with VA. Consequently, there are no benefits to which the Veteran was entitled, but that remained unpaid at the time of the Veteran’s death, and entitlement to accrued benefits must be denied. 38 C.F.R. § 3.1000. REMANDED ISSUE 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for the cause of the Veteran’s death because no VA examiner has opined whether the diseases listed as the cause of the Veteran’s death were the result of the immunizations and inoculations he received during his service. The Veteran’s cause of death was severe metabolic acidosis, due to hepatocellular carcinoma and fulminant end stage liver cancer. The Veteran’s death occurred a few months after his diagnosis with hepatitis C and hepatocellular carcinoma. At the July 2017 hearing, the claimant asserted the theory that the Veteran’s liver conditions were the result of his exposure to hepatitis C due to the immunizations and inoculations he received during his service. The Veteran’s service treatment records confirm that the Veteran received several immunizations and inoculations during his service. Consequently, the Board finds that an opinion is necessary before a final adjudication can be rendered in this matter. The matter is REMANDED for the following actions: 1. Obtain any outstanding or updated VA treatment records regarding any treatment the Veteran may have received for his conditions. 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s liver conditions that resulted in his death were at least as likely as not related to his receipt of any of the various inoculations or immunizations he was given while active duty. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel