Citation Nr: 21020984 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-39 478 DATE: April 8, 2021 ORDER Entitlement to death benefits from the Department of Veterans Affairs (VA) is denied. FINDINGS OF FACT 1. The decedent served on ACDUTRA from August 1962 to February 1963. 2. Entitlement to service connection was not in effect for any disability at the time of the decedent’s death. 3. The decedent, nor his lawful surviving spouse, was entitled to any monetary benefits at the time of decedent’s death. CONCLUSION OF LAW The appellant’s spouse did not have the requisite service to render her basically eligible for VA death benefits. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6, 3.10, 3.203. REASONS AND BASES FOR FINDING AND CONCLUSION The decedent served in the United States Army Reserve (Reserve) with a period of active duty for training (ACDUTRA) from August 1962 to February 1963. The decedent died in August 2012, and the appellant is the decedent’s surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 administrative decision of the Department of Veterans Affairs (VA). The October 2014 administrative decision denied the claim of entitlement to not only death pension benefits, but also dependency and indemnity compensation (DIC), and accrued benefits. The appellant’s entitlement to these benefits, which the Board has broadly referred to above as “death benefits”, are currently on appeal. In September 2019 and November 2020, the Board remanded the appeal for further development. 1. Entitlement to death benefits from the Department of Veterans Affairs (VA). In the instant case, the appellant seeks entitlement to death benefits on the basis of her husband’s service in the United States Army Reserve. She claims that he served in the Republic of Vietnam during the Vietnam War as part of the Army or CIA and participated in Air America operations. Additionally, she asserts that her husband was exposed to Agent Orange in Vietnam, which led to his death from cancer in August 2012. Service connection - Cause of Death The Appellant contends that she is entitled to service connection for the cause of the decedent’s death. The decedent passed away on August 17, 2012, due to cancer. At the time of the decedent’s death he was not service connected for any disability. Furthermore, there is no competent evidence of record linking the decedent’s cause of death to a possible service-connected disability or his military service. As such service connection for the cause of death cannot be established. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or is etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the decedent’s death. Id. The evidence obtained from the service department indicates that the decedent’s only service was in the Army Reserve, with a period of ACDUTRA from August 11, 1962 to February 9, 1963. Such service is not considered “active duty” for purposes of VA compensation benefits, as noted above in the definition of “active duty” in 38 C.F.R. § 3.6. Additionally, there is no evidence of any other period of military service, to include service in the Republic of Vietnam. The Board notes that the decedent’s service treatment records are negative for any complaints or treatment regarding cancer, or any symptoms thereof, during ACDUTRA or, indeed, at any point during his membership in the Army Reserve. Unfortunately, there is no probative evidence in favor of the claim and no indication that the decedent’s fatal cancer was incurred during his period of ACDUTRA. Accordingly, such ACDUTRA does not qualify as “active service” under 38 C.F.R. § 3.6. Moreover, the decedent has no other periods of service which meet the definition of “active service.” Without “active military, naval, or air service,” the decedent is not a “veteran” for VA compensation purposes. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are inapplicable. The appellant’s claim of entitlement to service connection for the cause of the decedent’s death must be denied. Accrued Benefits The pertinent law and regulations governing claims for accrued benefits state that upon the death of a Veteran, his lawful surviving spouse may be aid periodic monetary benefits to which the Veteran was entitled at the time of death, which were due and unpaid, based on existing rating decisions or other evidence that was on file when the Veteran died. 38 U.S.C. § 5121, 38 C.F.R. § 3.1000. The United States Federal Circuit Court has made it clear that, in order to support a claim for accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits, or else be entitled to them under an existing rating or decision. 38 U.S.C. § 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed Cir. 1998). In this case, the appellant died August 2012. Review of the record reveals that no claims were initiated by the appellant prior to his death, no claims were pending at the time of his death, and there were no existing rating decisions under which he might have been entitled to benefits which were unpaid. See 38 C.F.R. § 3.160(c), (d). Therefore, the Appellant’s claim must be denied because of the absence of legal entitlement. DIC and Pension The Board notes that in the Notice of Disagreement, the Appellant raises concerns for DIC as well as death pension. The provisions of 38 C.F.R. § 3.5 provide monthly payments to a surviving spouse because of a service-connected death after December 31, 1956. However, as explained above the decedent is not a Veteran for compensation purposes and his death is not service connected. Therefore, the Appellant cannot receive DIC. Death pension benefits are generally available for surviving spouses as a result of a veteran’s nonservice-connected death. 38 U.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 that would have justified a discharge for disability; and, if the Appellant meets specific income and net worth requirements. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). The record reflects that the decedent here did not serve active duty during wartime; his service during wartime was limited to the Guard and Reserves. The Board is sympathetic to the appellant’s claim and does not question the sincerity of her beliefs that she is entitled to the benefits that she seeks. However, the Board finds that the evidence does not establish that the appellant’s deceased spouse had active duty service in the United States military, to include service in Vietnam, in the service of the United States Armed Forces. The decedent was therefore not a “veteran” for VA benefits purposes. (Continued on the next page)   As explained above, the Board finds that the service of the appellant’s husband does not meet the legal definition of “veteran” for purposes of entitlement to VA death benefits. His service records show that he was in the Army Reserve, and that he did not serve on active duty. He did serve on ACDUTRA. However, during his lifetime, service connection was never established for any disability due to disease or injury incurred in or aggravated by that period of ACDUTRA. Neither was service connection established for a disability due to injury incurred in or aggravated by any period of inactive duty training, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during such training. Accordingly, he does not qualify as a “veteran” as the law defines that term for VA death benefit purposes. As such, the law provides no legal basis upon which to award death pension to the appellant. The claim is precluded by law. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.