Citation Nr: 21014606 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-37 233 DATE: March 15, 2021 ORDER Entitlement to accrued benefits based on restoration of a 100 percent rating prior to July 27, 2015 for service-connected liposarcoma, status post radical left nephrectomy, is granted. FINDINGS OF FACT 1. A November 2014 rating decision which reduced the 100 percent rating for liposarcoma did not become final; the Veteran submitted new and material evidence within one year of the decision which was not adjudicated as part of the appeal. 2. Prior to his death, the Veteran’s claim for an increased rating for service-connected liposarcoma, status post radical left nephrectomy, was pending. 3. The decision to reduce the Veteran’s service-connected liposarcoma, status post radical left nephrectomy, effective February 1, 2015, was not proper. CONCLUSIONS OF LAW 1. The November 2014 rating decision which reduced the rating assigned for service-connected liposarcoma is not final; new and material evidence was received in the one-year period following the November 2014 rating decision. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). 2. As the AOJ’s reduction of the disability rating for the Veteran’s service-connected liposarcoma from 100 percent to 30 percent, effective February 1, 2015, was not in accordance with law, the criteria for restoration of the 100 percent rating, prior to July 27, 2015 have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.105(e), 3.159, 4.115b, Diagnostic Code (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from August 1966 to December 1966, and from December 1966 to June 1970. He died in July 2016. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing before the undersigned on February 25, 2021. This decision is being made under the “one-touch” program. A transcript of the hearing will be associated with the claims file at a later time. The Veteran was initially granted service connection for liposarcoma status post radical nephrectomy and assigned a 100 percent rating, under Diagnostic Code (DC) 7528 for malignant neoplasms of the genitourinary system. The note to DC 7528 indicates that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 3.105(e) provides that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. In a November 2014 rating decision, the AOJ reduced the rating to 30 percent, based on findings from a May 2013 VA examination. The decision noted that the examination showed that the Veteran’s treatment had completed and that he was in watchful waiting status. In July 2015, the Veteran submitted a claim for an increased rating for his liposarcoma. He also submitted additional private treatment records. In a June 2015 VA treatment record from Cancer Care Northwest, it was noted that a February 2015 positron emission topography (PET) scan showed suspicious uptake and enhancing left thigh and paraspinous masses consistent with metastatic disease. A July 2015 surgical pathology report showed a diagnosis of metastatic high-grade sarcoma consistent with previous diagnoses of dedifferentiated liposarcoma with heterologous osteosarcoma. In an October 2015 imaging report from Holy Family Hospital, the examiner noted an enlarging soft tissue mass within the proximal left thigh consistent with a sarcoma. Additional VA treatments were also associated with the claims file which showed that the Veteran’s sarcoma had reoccurred. A March 2015 VA treatment record noted probable recurrence status post resection for left thigh dedifferentiated liposarcoma with heterologous osteosarcomatous differentiation. A May 2015 VA treatment confirmed that the mass in the thigh was very likely a malignancy. In a November 2015 rating decision, the AOJ granted service connection for liposarcoma of both the bilateral legs and back, which was related to the prior service-connected disability of liposarcoma post radical left nephrectomy. A rating of 100 percent was assigned from July 27, 2015. The Veteran passed away in July 2016. On his death certificate, his primary cause of death was listed as liposarcoma. Following the Veteran’s death, in July 2016, the Appellant submitted a claim for dependency and indemnity compensation (DIC) benefits. Service connection for the cause of the Veteran’s death was awarded in August 2016. In November 2016, the Appellant submitted a statement indicating that the Veteran should have received a 100 percent rating for his liposarcoma in the time period at which the Veteran was assigned a 30 percent rating for liposarcoma, status post radical left nephrectomy. She indicated that the rating should never have been lowered since the Veteran’s cancer was not curable and there was no chance that he would improve. She also indicated that the Veteran had filed a claim to reinstate his benefits back to 100 percent, but that the November 2015 rating decision only awarded a separate 100 percent rating effective July 27, 2015. In her June 2017 Notice of Disagreement, the Appellant indicated that she was entitled to accrued benefits, as the Veteran should have continued to receive the 100 percent rating for his liposarcoma for the 6-month period between February 2015 and July 2015. In the June 2017 Statement of the Case, the AOJ asserts that the Veteran did not have a claim pending at the time of his death. Thus, the Appellant would not have been entitled 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). Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled (accrued benefits) may be paid to certain parties. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). The statute provides that in certain circumstances accrued benefits may be paid to reimburse the person who bore the expenses of the payee’s last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000 (a)(5). Payment of monetary benefits begins the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Additionally, VA benefit payments are discontinued on the last day of the month before the payee’s death. 38 U.S.C. § 5112; 38 C.F.R. § 3.500(g). In this regard, the Board observes that the Appellant has standing to file a claim for accrued benefits as she has been recognized as the Veteran’s surviving spouse and was granted service connection for the cause of the Veteran’s death. See August 2016 Notification Letter. She also submitted a claim for accrued benefits in July 2016, within the one-year period following the Veteran’s death. Thus, the remaining questions are whether the VA payee had claim pending at the time of death, and whether the VA payee would have prevailed on the claim if he had not died. The Board finds that the Veteran did have a claim pending at the time of his death and that he would have prevailed on the claim had he not passed away. In this regard, the Board notes that in the one-year period following the November 2014 rating decision reducing the rating for liposarcoma, the Veteran had submitted new and material evidence. As this evidence was received within the appeal period for the decision implementing reduction, the provisions of 38 C.F.R. § 3.156(b) entitled the Veteran to a readjudication of his reduction claim, which did not occur. Therefore, the issue of reduction of the rating for liposarcoma, status post radical nephrectomy, rated under DC 7528, remains pending readjudication. Beraud v. McDonald, 766 F. 3d. 1402 (Fed. Cir. 2014) (holding that claim remains pending even after a subsequent adjudication when VA fails to make 3.156(b) determination of new evidence received). As the decision is fully favorable to the Veteran, the Board finds no prejudice in adjudicating this issue without further AOJ consideration. After reviewing the additional evidence submitted, the Board finds that the reduction of the Veteran’s rating for service-connected liposarcoma was improper. The note to DC 7528 provides that if there has been no local reoccurrence or metastasis, the Veteran should be rated based on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran had been assigned a 30 percent rating under DC 7500 for kidney removal. However, as discussed above, there was local reoccurrence and metastasis of the Veteran’s liposarcoma. Specifically, a February 2015 PET scan showed suspicious uptake and enhancing left thigh and paraspinous masses consistent with metastatic disease. A July 2015 surgical pathology report showed a diagnosis of metastatic high-grade sarcoma consistent with previous diagnoses of dedifferentiated liposarcoma with heterologous osteosarcoma. In addition, a May 2015 VA treatment confirmed that the mass in the thigh was very likely a malignancy. Thus, the Board finds that the Veteran was entitled to a 100 percent rating for his service-connected liposarcoma, status post radical nephrectomy, prior to July 27, 2015. Although the Veteran was later granted service connection for liposarcoma of both the bilateral legs and back, which was related to the prior service-connected disability of liposarcoma status post radical left nephrectomy, prior to the July 27, 2015, effective date of that grant, the Veteran’s liposarcoma had shown reoccurrence and metastasis. Accordingly, the reduction of the Veteran’s 100 percent rating was improper, and should have been restored. In conclusion, the Board finds that the claim for the reduction of the Veteran’s 100 percent rating for his service-connected liposarcoma was pending at the time of his death, and that the decision to reduce the rating was improper. Accordingly, the Board will grant entitlement to accrued benefits based on entitlement to a restoration of the 100 percent rating assigned for service-connected liposarcoma, status post radical nephrectomy, prior to July 27, 2015. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.