Citation Nr: 1807558	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-18 310	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Whether the appellant can be recognized as the Veteran's surviving spouse.

2.  Entitlement to service connection for the cause of the Veteran's death.

3.  Entitlement to VA death pension benefits.

4.  Entitlement to accrued benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Arnold, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1962 to October 1966.  The Veteran served in the Republic of Vietnam.  The Appellant argues she is the Veteran's surviving spouse.  AS will be discussed in detail below, the Board is recognizing the Appellant as the Veteran's surviving spouse.

This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The case was subsequently transferred to the VA Regional Office (RO) in Wichita, Kansas.

The appellant filed an application for dependency and indemnity compensation (DIC), death pension and accrued benefits in March 2013.  The April 2014 Statement of the Case lists the issues on appeal as entitlement to recognition as a surviving spouse and entitlement to accrued or death benefits as surviving spouse.  The appellant's Formal Appeal, filed in May 2014, does not limit the issues on appeal.  The Board also notes that under 38 C.F.R. § 3.152(b)(1), a claim for death pension necessarily raises the issue of entitlement to DIC benefits, including service connection for cause of death.  38 U.S.C. § 1310; 38 C.F.R. § 3.5.  The issue of service connection for cause of death is therefore before the Board.

The issue of entitlement to death pension benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran died on October [REDACTED], 2010.  

2.  The District Court of Leavenworth County, Kansas Civil Department, issued an order in February, 2014 for issuance of an amended death certificate showing appellant as spouse of the Veteran.

3.  The Veteran's death certificate lists lung cancer as his cause of death.

4.  The Veteran had physical presence in the Republic of Vietnam during the Vietnam Era.

5.  The appellant filed her application for DIC, death pension and accrued benefits in March 2013, more than a year after the Veteran's death in October 2010.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits are met.  38 U.S.C. § 103 (2012); 38 C.F.R. §§ 3.1(j), 3.50 (2017).

2.  The criteria for service connection for the Veteran's cause of death are met.  38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309 (e) (2017).

3.  The criteria for entitlement to accrued benefits are not met.  38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

With respect to the issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.


II.  Recognition as a Surviving Spouse

To establish marriage for VA benefits purposes, the Secretary is required to look to the law of the jurisdiction where the marriage took place or where the parties resided when the right to VA benefits accrued.  38 U.S.C. § 103(c); Burden v. Shinseki, 25 Vet. App. 178 (2012) (citing Hopkins v. Nicholson, 19 Vet. App. 165, 169 (2005)).  

The Appellant contends that she was the Veteran's spouse at the time of the Veteran's death in October 2010.  The record indicates that the Veteran and Appellant married in September 1996, and that marriage was severed by a divorce decree issued in April 2003.  The Veteran died in October 2010.  The Appellant has argued that she remarried the Veteran in 2006 and continuously cohabitated with him until the time of his death.  In February 2014, the district court of Leavenworth County, Kansas issued an order for issuance of an amended death certificate listing the Appellant as the spouse of the Veteran based on evidence presented and upon examination of the file.  An amended death certificate was issued in March 2014 that shows the Veteran's marital status at the time of death as married and identifies the Appellant as the surviving spouse.  

The Board finds that the order by a district court of Kansas constitutes a determination under the laws of that state that the Veteran and the Appellant were married at the time of his death.  As the record indicates that the Appellant and the Veteran resided in Kansas at the time of his death, the Board finds that the marriage is considered to be valid under the law of the place where the parties resided when the right to benefits accrued.  38 C.F.R. § 3.1(j).

As the parties marriage was valid under 38 C.F.R. § 3.1(j), the Appellant qualifies as a "spouse" for VA benefits purposes.  38 C.F.R. § 3.50(a).  As the Appellant has been found to have been the Veteran's spouse at the time of his death, has submitted statements that she cohabited continuously with him from the time of their marriage in 2006 until his death, and has not remarried, she meets the criteria for a "surviving spouse."  38 C.F.R. § 3.50(b).  Recognition of the appellant as the Veteran's surviving spouse for the purposes of VA benefits is therefore warranted.

III.  DIC Benefits

DIC benefits are payable to the surviving spouse 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 to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death.  38 C.F.R. § 3.312(a).  A principal cause of death is one which, 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 Veteran who had active service in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during that service to an herbicide agent.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii).  Service connection based on herbicide exposure will be presumed for certain specified diseases, including lung cancer.  38 C.F.R. § 3.309(e).

In this case, the Veteran's death certificate lists his cause of death as lung cancer.  No other underlying or contributing causes were listed.

Service connection was not in effect for lung cancer prior to the Veteran's death.  However, the Veteran's service records document service in the Republic of Vietnam during the Vietnam era and the Regional Office has acknowledged the same.  Specifically, his Vietnam service includes duty with a Marine unit in Vietnam from November 1964 to January 1965 and another period of duty in Vietnam from March 1965 to June 1965.  The records further document his disembarkment from the USS Henrico at Red Beach 2, Da Nang, Vietnam in March 1965 and embarkation aboard the USS Okanogan from Red Beach Da Nang in June 1965.  The Board therefore finds that the Veteran had actual presence in the Republic of Vietnam during the Vietnam era and herbicide exposure is therefore presumed.  

As lung cancer is a disease for which service connection will be presumed for herbicide-exposed Veterans, service connection for the Veteran's cause of death is warranted.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.309 (e).

IV.  Accrued Benefits

Accrued benefits are benefits to which a payee was entitled at his or her death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law.  38 U.S.C. § 5121 ; 38 C.F.R. § 3.1000.  For a claimant to prevail on an accrued benefits claim, the claim for accrued benefits must be filed within one year of the Veteran's death.  38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000.

Here, the Appellant's claim for accrued benefits was filed in March 2013, more than one year after the Veteran's death in October 2010.  Accordingly, the application for accrued benefits was not timely, and the claim fails on this basis alone.  38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c).  There is no evidence in the record to suggest that the Appellant filed her claim in a timely manner.

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).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 .


ORDER

Entitlement to recognition for the Appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits is granted.

Entitlement to service connection for cause of death is granted.

Entitlement to accrued benefits is denied.





REMAND

The Board has found that the Appellant is entitled to recognition as the surviving spouse of the Veteran for the purposes of receiving death pension benefits.  The Board finds that the record has not yet been developed regarding the Appellant's financial eligibility for death pension and remand is therefore warranted.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Appellant an opportunity to complete income and asset verification reports, as well as to submit financial documentation to support those forms.  The appellant should also be given the opportunity to submit medical expense information for the period on appeal.

2.  After completion of the above development to the extent possible, readjudicate the issue on appeal.  If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This matter must be afforded expeditious treatment.  The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs