Citation Nr: 21007230 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-56 209 DATE: February 9, 2021 ORDER Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits is denied. Entitlement to a non-service-connected death pension is dismissed. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran set foot in Vietnam during active service. 2. There was no claim that remained pending or unadjudicated at the time of the Veteran's death. 3. The benefits awarded to the appellant for the Veteran's cause of death are greater than the maximum available rate for the non-service-connected death pension. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2020). 2. The criteria for accrued benefits have not been met. 38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2020). 3. The criteria for basic eligibility for VA nonservice-connected death pension benefits are not met. 38U.S.C. §§ 1541, 1543 (2012); 38C.F.R. §§3.271, 3.272 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to September 1973. He died in October 2015, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from determinations by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 the appellant testified at a hearing before the undersigned Veterans Law Judge. Duties to Notify and Assist Neither the appellant nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The appellant offered testimony before the undersigned Veterans Law Judge at a Board hearing in March 2020. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service connection for the cause of the Veteran’s death To establish service connection for the cause of the veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310, 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the standards and criteria applicable to service connection claims generally are to be applied. 38 U.S.C. § 1310(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If a veteran was exposed to an herbicide agent during service, certain listed diseases, including lung cancer, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The appellant contends that the Veteran was exposed to herbicides by virtue of being on the ground in Vietnam during his active service. The Veteran died in October 2015. The Death Certificate recorded the Veteran’s cause of death as lung cancer. The Veteran had no service-connected disabilities during his lifetime. The Veteran’s service treatment records (STRs) contain no findings related to any malignant tumors. The Veteran was diagnosed with lung cancer in January 2015. The Veteran’s DD 214 indicates that he performed the duties of a weapon mechanic. A service personnel record reveals that in December 1972 the Veteran departed for a 174-day TDY assignment to Thailand. In a March 2020 letter, the Veteran’s sister stated that the Veteran had “spoke of stepping off the plane in Vietnam and how scared he felt.” In an April 2020 letter a service comrade stated as follows: “I am writing in regards to the time [the Veteran] spent in the Air Force, in Southeast Asia. I was in the Air Force stationed at Homestead Air Force from March-October, 1973. [The Veteran] was stationed at Homestead but deployed to Southeast Asia, from sometime at the beginning of the year to mid-summer, 1973. I know during the 6 month deployment he was sent to Vietnam and Thailand. [The Veteran] and I were in the same career field, 462 weapons release, on the F4E fighter bomber aircraft, assigned to the 31st Munitions Maintenance Squadron. [The Veteran] was with the 31 MMS during the time in question.” Resolving any doubt that may exist, the Board finds that the most probative evidence of record indicates that the Veteran set foot ashore Vietnam during active service. The two lay statements submitted are corroborated by the Veteran’s TDY orders in his personnel records. Based on the foregoing, exposure to herbicides is presumed, and service connection for the cause of the Veteran’s death (i.e., lung cancer) is warranted on a presumptive basis. Accrued Benefits Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000. Only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits. A review of the record provides no evidence of a pending claim at the time of the Veteran's death in October 2015, and the appellant has not made any argument asserting that there was such a pending claim. Therefore, because the record shows that the Veteran did not have a claim pending at the time of his death, there are no possible accrued benefits that could be paid to the appellant. Non-service-connected death pension benefits Death pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38U.S.C. §1541(a). An appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. 38 U.S.C. § 1541(a); 38C.F.R. §3.3(b)(4). In the present case, DIC benefits under 38 U.S.C. § 1310 are being granted based upon a service-connected cause of death. As an award of DIC benefits is the greater benefit, the claim for nonservice-connected death pension is considered moot, and is therefore dismissed. 38 C.F.R. § 3.151 (2020) (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.