Citation Nr: A21016842 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 201202-124817 DATE: October 18, 2021 ORDER Entitlement to enhanced dependency and indemnity compensation (DIC) under 38 U.S.C. § 1311(a)(2) is denied. FINDING OF FACT The Veteran 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 totally disabling for a continuous period of at least eight years immediately preceding his death in September 2019. CONCLUSION OF LAW The criteria for entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2) have not been met. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. §§ 3.5, 3.10, 20.1106. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1962 to October 1966. He passed away in September 2019. The appellant is the Veteran's surviving spouse, and her status as valid substitute claimant was recognized in October 2019. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 3, 2020 rating decision that, after special review of the Veteran's claims file, granted his claim of entitlement to service connection for liver cancer (as presumed from exposure to contaminated water at Camp LeJeune). This claim was originally received on August 13, 2019; therefore, a 100 percent rating for liver cancer was awarded effective that date, while ending on his death in September 2019. In addition to awarding the Veteran a 100 percent rating for liver cancer (effective the date of receipt of claim throughout the rest of his life), the June 3, 2020 rating decision also granted to the appellant entitlement to DIC for the Veteran's death from a service-connected disorder. She appealed the June 2020 rating decision asserting she is entitled to enhanced DIC (specifically invoking, in her or her agent's words, "the eight-and-eight rule") under 38 U.S.C. § 1311(a)(2). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Hearing docket. On May 5, 2021, the appellant's representative withdrew the appellant's hearing request. See Hearing Related Correspondence (rec'd May 5, 2021), at Pages 1 and 2 ("Note: The Widow does not wish to have a BVA hearing."). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or her agent within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). In this case, the Board may only consider evidence of record as of June 3, 2020, or else within 90 days after May 5, 2021, but not outside of these windows. The period during which new evidence could be permissibly added to the claims file has lapsed. The Board asserts jurisdiction accordingly. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to enhanced DIC, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board additionally notes that the appellant and her agent may have stated that this claim is intertwined with other claims on appeal, an accrued appeal, or Higher Level Review. The Board simply does not have jurisdiction over other claims pending elsewhere in the AMA, and there is nothing within the evidence of record precluding the Board from adjudicating this sole issue that is on appeal at this time. Nevertheless, if other claims are granted, those results may be considered new and relevant evidence to this claim. The appellant is free to file a Supplemental Claim and identify any such favorable decision. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal has been advanced on the Board's docket on account of the appellant's advanced age. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2) is denied. For deaths occurring on or after January 1, 1993, the rate of DIC benefit payments is typically the amount set forth in 38 U.S.C. § 1311(a)(1); however, a higher DIC payment rate, commonly called "enhanced" DIC, is paid to the surviving spouse of a deceased veteran who, at the time of death, was in receipt of or was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(c). The Board briefly notes in passing that the Veteran and the appellant were continuously married for more than 50 years culminating in the Veteran's death. This fact is not in serious dispute; therefore, the Board shall instead focus on the Veteran's totally disabled status, which is in dispute. 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 eight 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, that 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 eight 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 eight years prior to death, but the veteran was not receiving compensation for one of six reasons specified in § 3.10(f)(3)(iii). 38 C.F.R. § 3.10(f)(3). Here, the Veteran was granted a 100 percent rating for cholangio cancer of the liver effective August 13, 2019. See Rating Decision (June 3, 2020); VA Form 21-526EZ (rec'd Aug. 13, 2019 ). Prior to that date, the Veteran's total disability picture, in chronological order, is as follows: 20 percent overall disabling effective February 6, 1981 due to a chronic duodenal ulcer; 40 percent overall disabling effective February 2, 2004 due to an additional psychiatric disorder rated as 30 percent disabling by itself; 60 percent overall disabling effective November 22, 2010 due to additional coronary artery disease rated as 30 percent disabling by itself; and, finally, 70 percent overall disabling effective November 22, 2011 due to additional diabetes mellitus type II rated as 20 percent disabling by itself. The Veteran did not have any other service-connected disabilities. As previously noted, the Veteran died in September 2009. Thus, the record established he was not rated totally disabled due to a service-connected disability for a continuous period of at least eight years immediately preceding his death. The Appellant has not alleged CUE in any prior rating decision. There ultimately appears to be no evidence to suggest that this is at issue. The Veteran's 100 percent rating for liver cancer due to contaminated water at Camp LeJeune is effective the date of receipt of claim, which is August 13, 2019. There is no competent or credible evidence of record suggesting that the Veteran filed such a claim any earlier than that date. 38 C.F.R. § 3.10(f)(3)(i). There is also no indication that the exception relating to additional service department records is for application in this case as the Veteran's original service treatment records were received in March 1981. Furthermore, the Veteran's rating for his cholangio cancer of the liver was based upon a newly received claim from that diagnosis, see supra, a concession of exposure to contaminated water due to service at Camp LeJeune during qualifying dates (which was ascertainable previously), and an opinion that the Veteran's specific cancer was at least 50 percent likely to be a qualifying liver cancerin other words, not based upon additional service department records. 38 C.F.R. § 3.10(f)(3)(ii). The third exception under 38 C.F.R. § 3.10(f)(3) only applies when a veteran was entitled to receive compensation at the 100 percent rate, but did not for one of six enumerated reasons. As previously noted, the Veteran was not entitled to compensation at the 100 percent rate until August 13, 2019. 38 C.F.R. § 3.10(f)(3)(iii). (Continued on the next page) In sum, the Veteran was not in receipt of, nor entitled to received, as defined by VA regulation, compensation for a service-connected disability rated as totally disabling for a continuous period of eight years prior to his death. Accordingly, the Appellant's claim of entitlement to enhanced DIC under 38 U.S.C. § 1311(a)(2) must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.