Citation Nr: 20052008 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 17-19 555 DATE: August 7, 2020 ORDER Entitlement to accrued benefits, specifically, an earlier effective date for the award of a 100 percent disability rating, has been withdrawn. Entitlement to enhanced Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1311(a)(2) is denied. FINDINGS OF FACT 1. The Veteran died in August 2004. 2. At the time of his death, he had had a combined disability rating of 100 percent during the immediately preceding 6 months, so from February to August 2004. 3. The appellant, his widow, has been in receipt of DIC benefits effectively since the first month following his death, so since September 2004. 4. She timely filed a Notice of Disagreement (NOD) in August 2006 claiming entitlement to an effective date prior to February 2004 for his 100 percent rating. 5. In March 2010, prior to the promulgation of a decision in this appeal, she withdrew her claim of entitlement to an earlier effective date for his 100 percent disability rating. 6. Resultantly, the effective date for the award of his 100 percent disability rating remains in February 2004. 7. He was not in receipt of and was not entitled to receive, as defined by VA regulation, compensation for a service-connected disability that was rated as totally disabling for a continuous period of at least 8 years immediately preceding his death in August 2004. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal for accrued benefits, specifically, the claim for an earlier effective date for the Veteran’s 100 percent disability rating. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria are not met for entitlement to enhanced DIC benefits. 38 U.S.C. § 1311(a)(2); 38 C.F.R. §§ 3.10, 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1942 to February 1946, so during World War II. He died in August 2004. The appellant is his surviving spouse, so widow. She appealed to the Board of Veterans’ Appeals (Board) from a November 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On her October 2016 VA Form 9, Substantive Appeal to the Board, the appellant requested a hearing before the Board. But, in written correspondence since received in August 2019, she withdrew her hearing request. 38 C.F.R. § 20.704(e).   1. Entitlement to accrued benefits, specifically, an earlier effective date for the award of a 100 percent disability rating, is withdrawn. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. According to 38 C.F.R. § 20.205, the effect of filing a withdrawal of an appeal does not preclude filing a new NOD, a request for higher level review under 38 U.S.C. § 5104B, or a supplemental claim under 38 U.S.C. § 5108, as to any issue withdrawn, provided such filing would be timely. Here, though, VA did not receive a new NOD, request for higher level review, or a supplemental claim within the allotted time for filing. Thus, while the appellant has continued to submit documentation in support of an earlier effective date for the Veteran’s award of a 100 percent rating, she withdrew this claim in March 2010 and that withdrawal became final and binding. A withdrawal is effective upon receipt of the request. 38 C.F.R. § 20.204(b)(3). The Board further notes the appellant’s statement on her March 2017 VA Form 9, Substantive Appeal to the Board, that she “[has] never had a desire to withdraw an appeal. That is a grossly false statement.” However, in addition to her withdrawal date stamped on the date VA received it in March 2010, in October 2017 she submitted a duplicate copy of her earlier March 2010 withdrawal of the appeal, including the date stamp showing it as having been received by VA in March 2010. Thus, the appellant withdrew the appeal of her claim for an earlier effective date for the Veteran’s 100 percent disability rating in her March 2010 letter. She specifically noted that a withdrawal of the appeal seeking an earlier effective date for the award of the 100 percent rating for the Veteran’s mitral regurgitation with cardiomyopathy was requested. Hence, there remain no allegations of errors of fact or law for appellate consideration concerning this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this claim and it is summarily dismissed. 2. Entitlement to “enhanced” DIC benefits under 38 U.S.C. § 1311(a)(2) The appellant contends that she is entitled to an increase in the amount of monthly DIC benefits (i.e., “enhanced” DIC) she currently receives because she should receive an extra monthly amount because the Veteran had a total disability rating prior to his death, meaning a 100 percent rating. DIC is payable to a veteran's surviving spouse when the veteran dies from a service-connected disability. See 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a). For deaths occurring on or after January 1, 1993, the monthly rate of DIC for the surviving spouse shall be the amount set forth in 38 U.S.C. § 1311(a)(1). See 38 C.F.R. § 3.1(b). As an initial matter, the Board notes that the monthly DIC benefit amount is a basic rate set by law. However, an increased monthly rate may be available in certain, limited circumstances. An increased DIC amount, commonly called "enhanced" DIC, will be paid by VA to the surviving spouse of a deceased veteran who, at the time of death, was in receipt of or was entitled to receive (or, but for the receipt of retired pay or retirement pay, was entitled to receive) compensation for a service-connected disability that was rated totally disabling for a continuous period of at least 8 years immediately preceding death. See 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(c). When the Veteran died in August 2004, he had a 100 percent disability rating, which was granted effective February 2004, so just 6 months prior to his death. The basis of the appellant’s claim is that he should have been awarded an earlier effective date for that 100 percent rating. However, as already explained, she withdrew her claim for an earlier effective date for his award of a 100 percent rating in communication received by VA in March 2010. That withdrawal became final and binding upon receipt of that request. Thus, there remains no outstanding claim for an effective date prior to February 2004 for the award of the 100 percent disability rating. Section 1311(a)(2) does not afford a basis for an initial grant of DIC benefits, but only identifies an additional benefit for claimants who have already qualified for DIC benefits. See Barela v. Shinseki, 584 F.3d 1379, 1384 (Fed. Cir. 2009). For purposes of 38 U.S.C. § 1311(a)(2), "entitled to receive" means that a veteran filed a claim for disability compensation during his or her lifetime and (1) would have received total disability compensation for 8 years prior to death but for clear and unmistakable error (CUE) committed by VA in a decision made during the veteran's lifetime; (2) additional service department records submitted before or after the veteran's death, which were in existence at the time of a prior VA decision but had not previously been considered by VA, provide a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) for a period of 8 years prior to death; or (3) at the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for 8 years prior to death, but the veteran was not receiving compensation for one of six reasons specified in § 3.10(f)(3)(iii). See 38 C.F.R. § 3.10(f)(3). Here, the Veteran was in receipt of service connection for mitral regurgitation with cardiomyopathy (previously rated as systolic murmur, apical) and left knee traumatic arthritis, both with a 0 percent disability rating effective from February 1946, so back to the time of his discharge from the military. In February 2004, the Veteran filed a claim for an increased rating for these service-connected disabilities. Both claims were granted in a November 2005 rating decision; he was awarded a higher 100 percent rating for his mitral regurgitation with cardiomyopathy and a higher 10 percent rating for the traumatic arthritis of his left knee, both effective from February 2004. That 100 percent disability rating continued until the Veteran's death in August 2004. But because the period from February 2004 (the effective date of the 100 percent disability rating) and August 2004 (when he died) is less than the required 8 years (only, instead, just 6 months), there were not 8 continuous years of a total (i.e., 100 percent) rating immediately preceding his death. The appellant argues she is entitled to enhanced DIC based on what amounts to a theory of "hypothetical entitlement." Specifically, on her March 2017 VA Form 9, and in multiple other communications and pleadings, she asserted that the Veteran’s heart disability was severe enough to have warranted a 100 percent rating effective from the earliest date following his separation from service. However, the preponderance of the evidence is against the appellant's claim of entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2). The appellant asserts that she is entitled to enhanced DIC because, despite the fact that a total disability rating was granted as of February 2004, the Veteran was actually totally disabled for 8 or more years prior to his death. But, even if the appellant had submitted such evidence after his death, determinations regarding entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2) must be based on the determinations made during the Veteran's lifetime or challenges to such decisions on the basis of CUE, i.e., by collateral attack, rather than on de novo posthumous determinations as to whether the Veteran hypothetically could have been entitled to certain benefits if he had applied for them during his lifetime. 38 C.F.R. § 3.10(f)(3); see also 70 Fed. Reg. 72211 (Dec. 5, 2005); National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II). In NOVA II it was held that the “entitled to receive” language of 38 U.S.C. §§ 1311(a)(2) and 1318 could be interpreted in the same way. NOVA II, at 1378. The interpretation was that the two sections barred the filing of new claims, that is, claims where no claim had been filed during the veteran's lifetime or the claim had been denied and was not subject to reopening. Id., at 1378. Specifically, they bar "new claims filed posthumously by a veteran's survivor, that is, claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening." Id., at 1379. The Board recognizes that, previously, effective statutes and regulations permitted a theory of hypothetical entitlement for claims under 38 U.S.C. §§ 1311(a)(2) and 1318. See, e.g., Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000) (applying § 1311(a)(2)); Wingo v. West, 11 Vet. App. 307 (1998) (applying § 1318).   The effective date of the changes to 38 C.F.R. §§ 3.10 and 20.1106, however, that eliminated hypothetical entitlement for DIC cases was December 2, 2005. See 70 Fed. Reg. at 72,212. And, as already discussed, the appellant withdrew her appeal concerning the claim that had originated prior to the Veteran’s death, specifically, her appeal of the November 2005 rating decision that awarded him a 100 percent disability rating effective from February 2004. She did not file another claim for enhanced DIC benefits until April 2014, well after the December 2005 elimination of hypothetical entitlement to enhanced DIC benefits. Therefore, this case must be decided based on determinations made during the Veteran's lifetime, i.e., not after his death. See 38 C.F.R. § 20.1106. The appellant would be entitled to enhanced DIC if: (1) the Veteran was in receipt of a 100 percent evaluation for 8 years prior to his death, (2) such requirement would have been met but for CUE in a prior decision on a claim filed during his lifetime, or (3) the claim could be reopened based on service department records not previously considered by VA that provide a basis for awarding a total disability rating. See 38 C.F.R. § 3.10(f). None of these requirements is shown to apply to the facts of this case at hand. To reiterate, the Veteran died in August 2004, so only some 6 months after the effective date of his 100 percent rating. Thus, he was not in receipt of a 100 percent rating for the required 8 years prior to his death. See 38 C.F.R. § 3.10(c), (f)(3)(iii). The appellant has not identified – certainly not with the required specificity – any CUE in any rating decision of the RO during the Veteran's lifetime, including the March 1946 rating decision initially granting a 0 percent (noncompensable) combined disability rating for his service-connected disabilities. CUE must be pleaded with specificity. See 38 C.F.R. § 20.1404(b). The appellant has identified no specific error under the three-part test for CUE, which is that: (1) either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be undebatable and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Here, the Appellant has not argued that it was CUE for the RO to only have granted a noncompensable initial disability rating in the March 1946 decision or shown how the RO incorrectly applied the law then in effect and, further, how that misapplication of the law to the facts necessarily would have resulted in a different outcome to that initial decision. The appellant, however, has identified service department records that she believes were not previously considered by VA, which could serve as the basis for the reopening of the claim and the retroactive awarding of benefits at the requisite level for 8 years prior to the Veteran's death. See 38 C.F.R. § 3.10(f)(3)(ii). The basis of the appellant’s argument stems from a March 1946 notification letter that has boilerplate language stating, “[b]ased upon incomplete records. . .”. The appellant thus contends that the Veteran’s service treatment records (STRs) were not all of record at the time that initial decision was made and, thus, he should have been in receipt of a 100 percent disability rating based on those missing records, effective immediately after his separation from service. The appellant continues to state that the Veteran’s STRs have not been considered in subsequent decisions by VA. However, a review of the record shows that his STRs were associated with the claims file in June 1946. The Board acknowledges that that was three months after his initial rating decision. But, a further review of the record shows that VA then conducted another review of his claim in July 1947, and then still another review in December 1947 that was based on “clinicals received [on] 12/22/47.” In December 1947, prior to the December 1947 decision, VA received additional STRs, in addition to those that had been associated with his claims file in June 1946. Thus, the subsequent re-reviews of his disability ratings were conducted after his STRs (all of them) had been associated with his claims file and, resultantly, the STRs that the appellant cites as not reviewed in determining his initial disability rating were, in fact, later, i.e., eventually considered as required. Moreover, there was no appeal of those subsequent decisions that considered the complete STRs. The pending status of a claim is terminated with a later final adjudication of an identical claim. See Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008).   The Board has fully considered the appellant's statements and contentions, but the Board may not make any allowance for claims that the Veteran might have filed, or for disability rating appeals that he might have pursued. Entitlement to enhanced DIC benefits under 38 U.S.C. § 1311(a)(2) will be adjudicated with regards to the prior dispositions made during a veteran's lifetime. See 38 C.F.R. §§ 3.10, 20.1106. Regrettably, then, under the facts presented, the law mandates that the appellant's claim for enhanced DIC under 38 U.S.C. § 1311(a)(2) must be denied as she does not meet the eligibility criteria for these additional benefits. In sum, as the law and not the evidence is dispositive of this claim, the Board finds that her claim of entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2) must denied based on a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.