Citation Nr: 18149512 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-25 887 DATE: November 9, 2018 ORDER Dependency and Indemnity Compensation benefits at the enhanced rate, under the provisions of 38 U.S.C. § 1311, is denied. FINDING OF FACT The Veteran was not rated totally disabled due to a service-connected disability for a continuous period of at least eight years immediately preceding his death on March [redacted], 2015. CONCLUSION OF LAW The criteria for entitlement to Dependency and Indemnity Compensation benefits at the enhanced rate, have not been met. 38 U.S.C. §§ 1310, 1311 (2012); 38 C.F.R. §§ 3.5, 3.21 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1972. He died on March [redacted], 2015 and the appellant is his surviving spouse. Dependency and Indemnity Compensation Benefits at the Enhanced Rate In the May 2015 rating decision on appeal, Dependency and Indemnity Compensation (DIC) was awarded based on service connection for the cause of the Veteran’s death. DIC is payable to a Veteran’s surviving spouse when the Veteran dies from a service-connected disability. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a). The rates of DIC for surviving spouses are published in tabular form in Appendix B of the VA Manual M21-1 and are to be given the same force and effect as if published in the regulations of Title 38, Code of Federal Regulations. 38 C.F.R. § 3.21. The appellant contends that she is entitled to a higher rate of DIC as the Veteran’s service-connected disabilities should have been rated as 100 percent disabling for at least eight years prior to his death. In April 2016 correspondence, the appellant contends that the Veteran was actually permanently and totally disabled on March 26, 2006 rather than March 26, 2007. As an initial matter, the appellant has not alleged and the record does not show that she is in need of aid and attendance, in a nursing home or blind; is permanently housebound; or has any children below the age of 18. Thus, a higher rate of DIC is not warranted on those bases. 38 U.S.C. § 1311(b)-(f). Additionally, as the Veteran’s death did not occur prior to January 1, 1993, consideration of a higher basic monthly DIC rate based on the Veteran’s military pay grade in service as specified in 38 U.S.C. § 1311(a)(3) is not for application. The evidence of record clearly reflects that the Veteran was not rated totally disabled due to a service-connected disability for a continuous period of at least eight years immediately preceding his death on March [redacted], 2015. The Veteran was in receipt of a total disability rating prior to his death from March 26, 2007, a period of less than 8 years. The Veteran’s total 100 percent rating was assigned based on the combined evaluation for compensation of all his service-connected disabilities, including diabetic nephropathy with end-stage renal disease; vitreous hemorrhage and cataract removal; diabetes mellitus, type II; and bilateral peripheral neuropathy in the upper and lower extremities. See 38 C.F.R. § 4.25 (2017). To the extent the appellant alleges that the Veteran should have been rated as totally disabled prior to March 26, 2007 and at least eight years before his death, as discussed above, there were no claims pending at the time of the Veteran’s death that could form the basis for an award of an earlier 100 percent rating. Claims for DIC benefits under 38 U.S.C. § 1311 must be adjudicated with specific regard given to decisions made during a veteran’s lifetime, and in this case, those rating decisions are final. 38 U.S.C. § 7105. The state of the law is such that claims for DIC benefits under 38 U.S.C. § 1311 must be adjudicated with specific regard given to decisions made during the Veteran’s lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after the Veteran’s death. VA has also established that “hypothetical entitlement” is not a viable basis for establishing benefits under 38 U.S.C. § 1311. See 38 C.F.R. § 20.1106; 70 Fed. Reg. 72,211 (2005) (effectively barring entitlement to “enhanced” DIC benefits under 38 U.S.C. § 1311(a)(2) on the basis of hypothetical entitlement); National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (NOVA III), 476 F.3d 872 (Fed. Cir. 2007) (affirming VA’s regulation interpreting 38 U.S.C. § 1311(a)(2) and 38 U.S.C. § 1318 identically). The only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C. § 1311 are (1) to meet the statutory duration requirements for a total disability rating at the time of the Veteran’s death; or (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision. The appellant has not alleged clear and unmistakable error in this case and there is no basis for the Board to disturb the disability evaluations and effective dates assigned the Veteran’s service-connected disabilities. The facts of this case are not in dispute. The Veteran was in receipt of a total disability rating prior to his death, from March 26, 2007. He died on March [redacted], 2015. His service-connected disabilities were not rated totally disabling for a continuous period of at least eight years immediately preceding death. As the law is dispositive of the issue on appeal, the appellant’s claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the appellant cannot be awarded DIC benefits at the enhanced rate, pursuant to the provisions of 38 U.S.C. § 1311. (Continued on the next page)   The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel