Citation Nr: 1806946 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-06 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. 3. Entitlement to accrued benefits. 4. Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1948 to November 1951. The Veteran's death certificate shows that he died in November 2003, and the appellant was the Veteran's wife at the time of his death. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's cause of death was attributable to service, any incident of service, or a service-connected disability. 2. The only continuous period for which the Veteran received a 100 percent disability rating was from August 13, 1989 through September 30, 1990. 3. The appellant's application for accrued benefits was not received within one year of the death of the Veteran. 4. At the time of his death, the Veteran had no pending claims with VA or unpaid benefits due. 5. Following the death of the Veteran in November 2003, the appellant remarried and remained married until the death of her second husband. 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. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 2. The criteria for entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. 1318 have not been met. 38 U.S.C. §§ 1110, 1131, 1318, 5103, 5103A, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). 4. The criteria for recognition as the Veteran's surviving spouse for the purpose of nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101(a), 1521(j), 1541(a), 5103, 5103A (2012); 38 C.F.R. §§ 3.1, 3.3, 3.50, 3.52, 3.55, 3.215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA's duty to notify was satisfied by a letter in September 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. See 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c). Service treatment records, service personnel records, relevant treatment records from identified providers, and lay statements have been associated with the record. In Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) and DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that in a claim seeking service connection for a Veteran's death, a VA medical opinion must be provided whenever it is necessary to substantiate the claim unless there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a). While the Veteran's representative requested that the Board remand this case to obtain a medical opinion addressing whether the Veteran's death was causally related to service, the Board finds that further development is not warranted in this case as such an opinion would not have a reasonable possibility of substantiating the claim for the reasons further explained below. See November 2017 Informal Hearing Presentation. In particular, the Board notes there is no competent evidence of a specific in-service event or service-connected disability that could reasonably be related to the Veteran's terminal cancer. Compare DeLaRosa (no medical evidence of PTSD in Veteran's lifetime) with Wood (conflict between death certificate and autopsy report). Entitlement to Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of a Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). In this case, the Veteran served on active duty from August 1948 to November 1951. At the time of the Veteran's death in November 2003, he was in receipt of compensation for service-connected disabilities. Specifically, the Veteran was in receipt of compensation for residuals of a gunshot wound to the left thigh (40 percent) and left femur (20 percent), residuals of frostbite including amputation of the second through fifth toes of the left foot (20 percent) and the left great toe (10 percent), a back disability (100 percent from August 13, 1989 through September 30, 1990; 20 percent thereafter), and residuals of a donation from the left iliac bone (0 percent). The Veteran's combined disability rating was 80 percent from November 1, 1951 through August 12, 1989. It was increased to 100 percent beginning August 13, 1989 before returning to 80 percent on October 1, 1990. The 80 percent rating continued until the Veteran's death on November 3, 2003. The Veteran's death certificate and treatment records indicate that the Veteran's death was caused by carcinoma of unknown primary etiology. While the appellant has indicated that the carcinoma may have originated during the Veteran's service, the appellant has not provided any specific basis to reach such a conclusion. See November 2013 Notice of Disagreement. The service treatment records contain no indications of a carcinoma or cancer, and the record shows that the Veteran's carcinoma was not diagnosed until approximately 2003, many decades after his service. See October 2003 treatment record from VA Westside, Chicago. The treatment records do not suggest that the Veteran's cancer was related to an incident of service or a service-connected disability. Therefore, the Board finds that the appellant's claim must be denied as the record contains no indication from a competent source identifying an in-service event or service-connected disability which may be reasonably causally related to the Veteran's death. Entitlement to DIC under 38 U.S.C. § 1318 With respect to claims for DIC benefits under 38 U.S.C. § 1318, VA shall pay benefits to a Veteran's surviving spouse in the same manner as if the Veteran's death were service connected, so long as the veteran did not die due to his own willful misconduct and certain requirements are met. See 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Specifically, the veteran must have been in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that was (1) continuously rated as totally disabling for a period of ten or more years immediately preceding his death, or (2) that was continuously rated as totally disabling for a period of not less than five years from the date of the Veteran's discharge or release from active duty; or, the veteran must have been a former prisoner of war (POW) with a service-connected disability that was continuously rated as totally disabling for a period of not less than one year immediately preceding his death. See 38 U.S.C. § 1318(a)-(b); 38 C.F.R. § 3.22(a). In this case, the Veteran was not in receipt of compensation at the time of his death for a service-connected disability that was continuously rated as totally disabling for a period of ten or more years immediately preceding his death, or that was continuously rated as totally disabling for a period of not less than five years from the date of his discharge or release from active duty. Additionally, the Veteran was not a former POW and did not have a disability rated as continuously disabling for a period of not less than one year immediately preceding his death. The Board is sympathetic to the appellant, and the denial of this claim does not in any way diminish the Veteran's service. Nevertheless, entitlement to DIC benefits under 38 U.S.C. § 1318 is based upon specific and unambiguous requirements that have not been met in the instant case. See 38 U.S.C. § 7104(c); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the Board is without authority to grant the instant claim, it must be denied. See 38 U.S.C. § 1318, 7104; 38 C.F.R. § 3.22. Entitlement to Accrued Benefits Benefits to which a veteran was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid may be awarded to the Veteran's surviving spouse. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The application for accrued benefits must be filed within 1 year after the date of death; and a claim for death pension, compensation, or dependency and indemnity compensation, by an apportioned, surviving spouse, child or parent is deemed to include a claim for any accrued. Id. In this case, while the Veteran died in 2003, the appellant did not file her application for accrued benefits until many years later in 2013. The Board notes that the appellant indicated that she filed late because a VA employee indicated she did not qualify for benefits. See November 2013 Notice of Disagreement. However, in this case, the Board finds there is no basis for granting a claim for accrued benefits as the Veteran did not have any claims pending with VA at the time of his death, and there is no evidence of unpaid benefits due. Accordingly, the appellant's claim for accrued benefits must be denied. Entitlement to Nonservice-Connected Death Pension Benefits A "surviving spouse" is entitled to VA nonservice-connected death pension benefits if: (i) the veteran had qualifying service (a veteran who served during wartime); or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; 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 applicable maximum annual pension rate specified in 38 C.F.R. § 3.23, 3.24. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). In this case, the Board finds that the appellant is not eligible for the nonservice-connected death pension benefits sought because she does not qualify as a "surviving spouse" within the definition applicable to her pension claim under 38 C.F.R. § 3.3. As the appellant noted in her November 2013 Notice of Disagreement, she remarried after the death of the Veteran and did not file for pension benefits until after the death of her second husband. Under 38 C.F.R. § 3.50(b)(2), the definition of a "surviving spouse" excludes a spouse who has remarried except as provided in 38 C.F.R. § 3.55. While 38 C.F.R. § 3.55(a)(3) prevents the appellant's remarriage under these circumstances (remarriage after October 1, 1998 terminated by death) from being a bar in regard to her claim for DIC benefits, there is no similar exception in regard to her claim for nonservice-connected death pension benefits. Therefore, the Board finds that the appellant's claim for entitlement to nonservice-connection death pension benefits must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs