Citation Nr: 20002833 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 18-50 765 DATE: January 13, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. Entitlement to nonservice-connected death pension benefits is denied. FINDINGS OF FACT 1. The Veteran’s death certificate showed he died in September 2016, the immediate cause of death was noted as cardiac arrest due to or as a consequence of cardiorespiratory arrest; the underlying cause of death was cerebrovascular disease. 2. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 3. Cardiac arrest and cerebrovascular disease did not manifest during service. Cardiac arrest and cerebrovascular disease are not attributable to service. 4. A service-connected disability was not the principal or a contributory cause of the Veteran's death. 5. The Veteran did not have any pending claims before VA at the time of his death. 6. The appellant has not provided any information as to her income and net worth, nor her unreimbursed medical expenses for the rating period on appeal. 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, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2018). 2. The requirements for payment of accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121; 38 C.F.R. §§ 3.102, 3.151, 3.1000 (2018). 3. The criteria for death pension benefits have not been met. 38 U.S.C. § 1503; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from November 1967 to September 1971. He died on September [REDACTED], 2016. The appellant claims as his surviving spouse. Initially, the Board would like to express its sympathy to the appellant for her loss and recognize the Veteran’s years of excellent service to this country in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 decision issued by the Department. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As this appeal concerns a claim for service connection for the cause of the Veteran’s death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev’d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the appellant filed her claim for service connection for the cause of the Veteran’s death, accrued benefits, and death pension, using a VA Form 21-526EZ for fully developed claims. Under the framework for a fully developed claim (FDC), a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. When filing a fully developed claim, an appellant submits all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the appellant of what evidence is required to substantiate a claim for service connection for the cause of the Veteran’s death and of the appellant and VA’s respective duties for obtaining evidence. See id. Thus, in this case, the notice that is part of the claims form submitted by the appellant satisfied the duty to notify. VA also has a duty to assist an appellant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the appellant’s own statements in support of her claim. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. Here, no medical opinion was obtained responsive to the claim for service connection of the Veteran’s death. An opinion was not required regarding the claim for service connection for the cause of the Veteran’s death, as the weight of the evidence demonstrates that there was no related disease or injury during service. Accordingly, the Board finds that VA’s duty to assist has been met. Service Connection for the Cause of the Veteran’s Death Dependency and Indemnity Compensation (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 (2018). A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2018). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As cardiovascular-renal disease is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for the cause of the Veteran's death The Veteran’s death certificate showed he died in September 2016. The Veteran’s death certificate lists the Veteran’s cause of death as cardiac arrest due to or as a consequence of cardiorespiratory arrest; an underlying cause of death was cerebrovascular disease. The appellant contends that the Veteran’s cerebrovascular disease that was the underlying cause of his death is related to his active service. Unfortunately, the Board finds that entitlement to service connection for the cause of the Veteran’s death cannot be granted in this case. Review of the record does not show that the Veteran’s cerebrovascular disease had onset in service or within a year of separation from service. There is nothing to suggest that there were characteristic manifestations sufficient to identify relevant pathology in service of any of the conditions listed as causes of death. As a result, direct and presumptive service connection on the basis of a chronic condition manifesting within a year of separation are not warranted. 38 C.F.R. § 3.303(b). The Board also points out that the Veteran’s death certificate makes no mention of the Veteran’s military service or any events therein as an underlying or contributory cause of death. Significantly, no medical professional has suggested that the Veteran’s fatal cardiac arrest and cardiorespiratory arrest, or his cerebrovascular disease, are due to his military service and the record otherwise contains no indication that this is the case. Additionally, the appellant has not presented, identified, or even alluded to the existence of any such evidence. Thus, there is no basis for VA to obtain an opinion as to the etiology of these conditions. 38 U.S.C. § 5103A. Given the absence of any evidence of the Veteran’s immediate causes of death (cardiac arrest and cardiorespiratory arrest) and/or underlying cause of death (cerebrovascular disease), for many years following separation from service, and in the absence of any competent evidence that his death from cerebrovascular disease is in any way related to an in-service injury or disease, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran’s death. As such, the Board finds no basis upon which to award service connection for the cause of the Veteran’s death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b).   Accrued Benefits Under 38 C.F.R. § 3.1000, certain eligible individuals, including a Veteran's surviving child, may be paid periodic monetary benefits authorized by VA law to which a payee was entitled - and which are due and unpaid - at the time of his or her death under existing ratings or based on evidence in the file or constructively of record at the time of his or her death. See 38 U.S.C. § 5121(a). Pertinent to this claim, in certain cases a portion of such accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit held that, for an eligible person to be entitled to accrued benefits, “the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.” See Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (holding that a consequence of the derivative nature of an accrued benefits claim is that, without the veteran having a claim pending at time of death, the eligible survivor (in this case a surviving spouse) has no claim upon which to derive his or her own application). The term “pending claim” means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). A recent change to VA law also allows a person eligible to receive accrued benefits to instead substitute himself or herself as the claimant for the purpose of processing any claims pending at the time of the Veteran's death to completion. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). 2. Entitlement to accrued benefits The record shows that at the time of the Veteran's death in July 2016, he did not have any pending claims. Because the Veteran did not have any pending claims when he died, entitlement to accrued benefits may not be granted as a matter of law. See 38 C.F.R. § 3.1000; Jones, 136 F.3d at 1299. Consequently, entitlement to accrued benefits is denied. Death Pension Death pension benefits may only be paid if the appellant’s income is below a certain amount, called the “maximum rate.” See 38 U.S.C. § 1541; 38 C.F.R. § 3.23. This is the amount of pension she would be entitled to if she did not have any income at all. If she has income, but it is less than this maximum amount, this income will be subtracted from the amount of pension she receives. In other words, for every dollar of income she receives, the pension is reduced by that amount. If, however, her income is higher than the “maximum rate,” she is not entitled to any pension. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). The types of income excludable for VA pension purposes must be deducted in the year in which they occurred. Id. Accordingly, should the expenses reduce the income below zero, the remaining expenses will not count against the next year’s income. If certain conditions are met, unreimbursed medical expenses paid by the appellant may be excluded from income, i.e., subtracted from her income. The medical expenses must exceed 5 percent of the maximum rate, and must be deducted, or subtracted, from income during the time period in which they were paid. In addition, they must be out-of-pocket expenses, for which the claimant received no reimbursement from any third party. In other words, the claimant did not get paid by anyone or an insurance company for these expenses. 3. Entitlement to nonservice-connected death pension benefits The Veteran served on active duty from November 1967 to September 1971. As he served for 90 days or more, including during a period of war, the appellant, his surviving spouse, is eligible for nonservice-connected death pension benefits provided she meets the required income and net worth requirements noted above. In her application for benefits, the aforementioned VA Form 21-534EZ, the appellant indicated that she had no net worth of any kind, including cash, bank accounts, retirement accounts, real property other than her home, other property, or stocks, bonds, and mutual funds. The appellant also indicated that she had no income of any sort, including Social Security Administration benefits, disability benefits, survivor’s benefits, retirement benefits, or supplemental income/public assistance. The Board observes that the appellant, in connection with her claim to be recognized as the Veteran’s surviving spouse, submitted income tax information, but such information pre-dated the Veteran’s death by several years. She reported no expected income from any other source, but reported that she anticipated receiving $1200/month in Social Security Administration benefits. She did not complete the section on unreimbursed expenses, to include medical expenses, but provided information as to her bank account for purposes of direct deposit. Given the incomplete and contradictory information provided, the RO requested additional information as to the appellant’s income and expenses. However, she failed to respond, and the appellant did not submit any documentation as to income and expenses. As such, the Board has no way of determining whether the appellant has income in above or below the maximum rate. In the absence of information as to the Veteran’s income, the Board cannot determine her eligibility for death pension benefit. Therefore, there is no legal basis on which to grant the appellant’s claim for death pension. The Board is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The appellant is free to reopen her claim by submitting information as to her income and expenses; such information must demonstrate that her income falls below the maximum rate, based on loss of income, or on paid, unreimbursed, medical expenses (most of which may be deducted from income). The Board sympathizes with the appellant’s sincere belief that she is entitled to death pension benefits. Nevertheless, the Board is bound by the law. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (“[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.”). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Brokowsky, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.