Citation Nr: 18129673 Decision Date: 08/27/18 Archive Date: 08/27/18 DOCKET NO. 15-09 480 DATE: August 27, 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 his death, the Veteran did not have any pending claims before VA that were not finally adjudicated. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1951 to March 1953. The Veteran died in 2014, and the appellant is his surviving spouse. In June 2016, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 60 days to allow for the submission of additional evidence for consideration; however, no additional evidence was submitted within that time. Entitlement to accrued benefits. Periodic monetary benefits to which a Veteran was entitled at death, either because 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.” For the appellant 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; 38 C.F.R. § 3.1000; see Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Veteran filed a claim in July 2013 for entitlement to service connection for peripheral neuropathy of both legs and feet, entitlement to service connection for stenosis and arthritis of the spine, entitlement to service connection for dementia (to include as secondary to peripheral neuropathy of both legs and feet), and entitlement to special monthly compensation (SMC) based on the need for aid and attendance. A June 2014 rating decision denied entitlement to service connection for peripheral neuropathy of both legs and feet, for stenosis and arthritis of the spine, and for dementia, and also denied entitlement to SMC based on the need for aid and attendance. The Veteran was notified of this decision by a June 2014 letter. While the appellant asserted on her March 2015 substantive appeal (VA Form 9) that a February 2014 notice and assistance letter to the Veteran “was the last of what VA had done to his claim[,]” the record shows VA adjudicated the claim and that the Veteran received the June 2014 notice of that rating decision as it was sent to his mailing address of record. There is no evidence to show that the notice was either returned to the sender or otherwise not received. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (the “presumption of regularity” applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, non-receipt of a communication, or other failing. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Following notice of the June 2014 rating decision, there are no documents or reports of communications from the Veteran (including any that could be construed as a notice of disagreement) to appeal the June 2014 rating decision prior to his death, and he also did not submit any additional formal or informal claims for VA benefits prior to his death. Furthermore, no new and material evidence was submitted within one year following notice of the June 2014 rating decision. Therefore, because the record shows that the Veteran did not have any type of claim pending at the time of his death in August 2014, there are no possible accrued benefits that could be paid to the appellant. See Jones, 136 F.3d at 1296. 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). REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death. The Veteran’s immediate cause of death in 2014 was respiratory failure, due to (or as a consequence of) chronic renal failure, due to (or as a consequence of) end stage dementia. The significant conditions contributing to death, but not resulting in the underlying cause of death, were listed as peripheral vascular disease and hypertension. The Veteran’s service-connected disabilities were bilateral hearing loss (rated 80 percent disabling) and tinnitus (rated 10 percent disabling). The record reflects that the Veteran was treated at the Beaumont, Texas VA Outpatient Clinic at least through October 2013. The record also reflects that he was treated at the Oak Grove Nursing Home and the Medical Center of Southeast Texas from February 2014 through August 2014 (per an October 2014 VA Form 21-4142 from the appellant), and that he died while an inpatient at the Medical Center of Southeast Texas (per his death certificate). On remand, all outstanding treatment records for the Veteran must be obtained and associated with the claims file. The matter is REMANDED for the following actions: 1. Ask the appellant to complete a VA Form 21-4142 for all private providers who treated the Veteran prior to his death (including all outstanding records from the Oak Grove Nursing Home and all available records – including his terminal treatment records – from the Medical Center of Southeast Texas). Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. Obtain all outstanding VA treatment records for the Veteran (including from the Beaumont, Texas VA Outpatient Clinic) for the period from October 2013 until his death in August 2014. 3. After obtaining all additional records, determine if further medical development should be undertaken. After all appropriate development, readjudicate the claim and take any appropriate appellate action. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel