Citation Nr: 21004326 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-37 197 DATE: January 26, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran’s death was not related to service-connected disability and he was not totally disabled due to service-connected disability for 10 years or more. 2. The Veteran did not have a claim or appeal for benefits pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for DIC have not been met. 38 U.S.C. §§ 1310, 1318; 38 C.F.R. §§ 3.22, 3.312. 2. The criteria for 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 January 1952 to June 1953. He died in June 2012. The appellant is his surviving spouse. In October 2016 the appellant met with a Decision Review Officer (DRO) for a DRO hearing. At the hearing the appellant stated that she had no more evidence to submit and requested that her claims be transferred to the Board. In an August 2019 decision, the Board denied the appellant’s claims for DIC and accrued benefits and the appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to an August 2020 Joint Motion for Remand (JMR) filed by the parties to this matter, the Court vacated the August 2019 Board decision and remanded the case for additional consideration. The JMR states that the Board failed to ensure compliance with an October 2017 Board remand directive when a copy of a January 2014 rating decision was not obtained and placed in the Veteran’s electronic file. The Board has reviewed the file and has determined that no such document exists. The RO did not issue a rating decision in January 2014. Furthermore, there is no indication that there are any other rating decisions, or any other documents, missing from the file. The October 2017 Board remand decision stated that a review of the Veteran’s electronic file appeared to indicate that a January 2014 rating decision was missing from the Veteran’s record and directed that such record be obtained (emphasis added). An April 2019 deferred rating decision explains that the regional office (RO) did not issue a rating decision in January 2014. It noted that although the appellant had not submitted a claim for service connection for the cause of the Veteran’s death, the RO sent a letter to the appellant on January 10, 2014 that mistakenly included a statement that a claim for service connection for cause of death was denied. The appellant disagreed with the January 10, 2014 letter and the current appeal ensued. Due to the fact that a rating decision was not issued in January 2014, there would be no benefit to the appellant to remand the appellant’s claims to try to obtain a nonexistent document. Accordingly, the appellant’s claims are now ready for adjudication by the Board. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The JMR also instructed the Board to address the appellant’s contention that she and the Veteran did not receive a retroactive payment stemming from a January 2011 rating decision which awarded the Veteran entitlement to a total rating based on individual unemployability. The Board does not have the authority or the ability to help with this matter. The Board suggests that the appellant contact either her representative or the local VA regional office for assistance in addressing this matter. 1. Entitlement to DIC. As noted above, even though the appellant had made no such claim, a January 10, 2014 RO letter included a statement denying service connection for the cause of the Veteran’s death. The appellant disagreed with the January 10, 2014 letter and this appeal ensued. The appellant has not made any specific assertions as to why she believes her husband’s death was related to service. A surviving spouse of a veteran is entitled to DIC if the evidence shows that a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to be service connected, a disability must have been incurred in or aggravated by service, or proximately due to a service-connected disability. 38 U.S.C. § 1110 (2002); 38 C.F.R. § 3.303 (2018). Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such 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. See 38 C.F.R. § 3.312(a). The Veteran in this case died in June 2012. The death certificate documents that the Veteran died of cardiopulmonary arrest due to bronchial aspiration and severe community acquired pneumonia. The Veteran was only service-connected for one disability. This disability was a shell fragment wound to the right arm with muscle injury and fracture of the right humerus with radial nerve injury and loss of use of the hand, rated as 70 percent disabling. As noted above, the Veteran’s death was due to cardiopulmonary arrest, bronchial aspiration and community acquired pneumonia. There is no competent evidence demonstrating that his service-connected right upper extremity disability was a principal or contributory cause of death. There is no evidence, lay or medical, on record that suggests an etiological connection between the Veteran’s service-connected right upper extremity shell fragment wound disability and cardiopulmonary arrest, bronchial aspiration or pneumonia. Accordingly, service connection for the cause of the Veteran’s death cannot be established on this basis. To the extent that the appellant alleges there is a link between military service and the cause of the death, the Board finds this allegation without probative value. As a lay person, the appellant is not competent to link the two and this is a complex medical determination. Additionally, the medical evidence of record does not indicate that the Veteran developed cardiopulmonary arrest, bronchial aspiration or pneumonia during service or for many years after discharge from service. There is no evidence relating any of these terminal conditions to service. Consequently, service connection is not warranted for any of the illnesses that caused the Veteran’s death. Under 38 U.S.C. § 1318, VA death benefits may be paid to the surviving spouse of a deceased Veteran in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW. The Veteran was granted a total rating based on individual unemployability due to service-connected disability (TDIU) effective October 8, 2010 and he died in June 2012. The Veteran was not a POW and he was totally disabled due to service-connected disability for less than two years. Consequently, the requirements of 38 U.S.C. § 1318 are not met. Based on the above, the Board finds that the preponderance of the evidence weighs against the claim and the appeal of entitlement to DIC is denied. 2. Entitlement to accrued benefits. Accrued benefits are defined as periodic monetary benefits authorized under a law administered by VA, to which a payee was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee’s death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). (Continued on the next page)   Here, putting aside any of the other requirements for accrued benefits, the appellant’s claim fails because there is no evidence that the Veteran had a claim pending at the time of his death. The appellant has not contended that the Veteran had an unadjudicated claim or appeal pending at the time of his death. Absent any evidence of a pending claim, any claim for accrued benefits must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.