Citation Nr: 20021263 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-24 215 DATE: March 25, 2020 ORDER Entitlement to nonservice-connected survivor pension benefits is denied Entitlement to accrued benefits are denied. REMANDED Dependency and indemnity compensation (DIC) benefits, to include service connection for the cause of the Veteran’s death is remanded. Entitlement to burial benefits is remanded. FINDINGS OF FACT 1. The Veteran died in January 2011 and the primary cause of death was pancreatic cancer. 2. The Veteran did not have active duty service during a period of war. 3. The Veteran had no claims pending before VA at the time of his death. 4. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 7. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling a non-VA facility at VA expense for the purpose of examination, treatment, or care. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected survivor pension benefits have not been met. 38 U.S.C. §§ 101, 1503, 1541, 5312; 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.50, 3.271, 3.272. 2. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1957 to September 1960. He died in January 2011. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from July 2016 and August 2016 decisions in which the Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to survivor’s pension, accrued benefits, service connection for cause of death, and burial benefits. As an initial matter, the appellant requested a hearing in May 2017 VA Form-9. An August 2019 Correspondence from VA indicates an October 2019 hearing was scheduled. The record demonstrates that the appellant failed to appear for the hearing. The appellant has not submitted any evidence showing good cause for missing the hearing or any request to reschedule the hearing. As such, the Board finds that the hearing request is forfeited. 1. Entitlement to nonservice-connected survivor pension benefits, is denied. The appellant seeks entitlement to survivor pension benefits. Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; 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 maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. § 3.3. Entitlement to death pension benefits exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3. (b)(4), 3.23(a), (b), (d)(5). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). Fractions of dollars will be disregarded in computing annual income. See 38 C.F.R. § 3.271(h). The appellant filed her claim in February 2016. The Veteran’s DD-214 indicates that the Veteran served from June 1957 to September 1960. The threshold requirement for entitlement to a pension under 38 C.F.R. § 3.3, if the Veteran served during a period of war. The Veteran did not serve during a war period of war. See Id. As such, the appellant is not entitled to survivor pension benefits and further considerations are not warranted. 2. Entitlement to accrued benefits is denied. The Appellant contends she is entitled to accrued benefits as result of the Veteran's death. Generally, accrued benefits are benefits that are due but unpaid to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death, and are payable to the living first person in the following list (in this order): the veteran's surviving spouse; the veteran's children; and the veteran's dependents. 38 U.S.C. § 5121 (a)(2)(B); 38 C.F.R. § 3.1000. There is no basis for an accrued benefit claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In other words, to support a claim for accrued benefits, the deceased veteran (or other payee) must have had a claim pending (filed but not finally adjudicated by VA) at the time of his or her death, or otherwise have been entitled to the benefits under an existing rating or decision (e.g., a rating decision awarding benefits was issued, but the veteran died before the benefits could be paid). In this case, the Appellant does not assert, and the record is otherwise negative for, evidence demonstrating that a claim was pending with VA at the time of the Veteran's death, or that the Veteran was entitled to, but that he had not received, any VA benefits. Accordingly, the provisions of 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000 are dispositive in this matter. Although the Board is sympathetic to the Appellant's claim, the law is controlling and prohibits the payment of accrued benefits under the factual circumstances of this case. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. As the law is dispositive, the Appellant's claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1.Entitlement to DIC benefits, to include service connection for the cause of the Veteran’s death is remanded. The appellant seeks service connection for the Veteran’s cause of death. Service connection for the cause of a veteran's death will be granted for a service-connected disability that caused the death or substantially or materially contributed to it. In determining whether a disability that resulted in the death of a veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Establishing service connection generally requires a current disability, in-service incurrence or aggravation of a disease or injury, and a causal relationship (nexus) between the current disability and an in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In cases of service connection for the cause of the death of a veteran, the condition that caused the veteran to die is a current disability for purposes of the service-connection analysis. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The Veteran's death certificate lists the immediate cause of death as pancreatic cancer. At the time of his death, the Veteran was not service connected for any disability. A review of the record indicates that the only piece of evidence presently associated with the file is the Veteran’s DD-214. No service treatment or personnel records are associated with the file. The appellant’s January 2020 brief, states that the records are presumed missing. However, nothing in the record denotes that a search has been conducted. As such, the Board believes it would prejudice the appellant to adjudicate this matter without such information. The Board will remand for any service personnel and treatment records as they may be relevant to the issue of entitlement to service connection for cause of death. 2. Entitlement to burial benefits, to include a plot or internment allowance, is denied The appellant asserts that she is entitled to burial benefits, to include a plot or interment allowance. The Board finds that the claim for burial benefits is inextricably intertwined with the claim for service connection for the cause of the Veteran’s death. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As claim for service connection for the cause of the Veteran’s death is being remanded, the Board will defer adjudication of the burial benefits claim pending development of the service connection claim. The matters are REMANDED for the following action: 1. Undertake appropriate development to associate with the Veteran's claims folder any STRs or personnel record from 1957 through 1960 to the extent possible. If no STR or personnel records are available for this Veteran, please provide a formal memorandum concerning the unavailability of such records. 2. After all available records and/or responses have been associated with the claims file, if the Veteran’s records are identified, arrange to have an appropriate VA physician comprehensively review the record and provide opinion addressing the relationship, if any, between the Veteran’s service and his death to the extent possible. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to, and be reviewed by, the designated physician, and the opinion should include discussion of the Veteran’s documented medical history and all lay assertions, to include those advanced by the appellant. Complete, clearly stated rationale for the conclusions reached must be provided. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.