Citation Nr: 21021737 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-38 190 DATE: April 13, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) is denied. Entitlement to death pension benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. During the service member’s lifetime, service connection was not established for any disability. 2. The service member’s death certificate showed that he died of natural causes. 3. The service member did not serve on active duty for 90 days or more. 4. The service member did not have any claims pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to Dependency and Indemnity Compensation (DIC) have not been met. 38 U.S.C. §§ 1310, 1318, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.1600. 2. The criteria for entitlement to death pension benefits have not been met. 38 U.S.C. §§ 1503, 1521, 1541, 1542, 5103; 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.271, 3.272, 3.273. 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1110, 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The service member served in the United States Naval Reserve from January 1944 to April 1944. He died in October 2011, and the Appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case came before the Board in August 2018. The Board remanded the Appellant’s claims because VA failed to notify the appellant of the evidence necessary to substantiate her claim in accordance with 38U.S.C.§5103 and 38C.F.R.§3.159(b). Accordingly, the Board remanded these issues in order for the RO to send the Appellant adequate notice of the evidence necessary to substantiate her claims. 1. Entitlement to Dependency and Indemnity Compensation (DIC) The Appellant has offered no contentions has to which specific benefit she is seeking. Therefore, the Board has broadened her claim to include consideration of 38 U.S.C. § 1310 and 38 U.S.C. § 1318. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the veteran’s death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service connected, if the veteran died not as the result of his own willful misconduct and the veteran was, at the time of his death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Board notes that the service member did not have any service-connected disabilities and his death certificate indicated that he died of natural causes. In sum, the Board finds that DIC benefits under the provisions of 38 U.S.C. § 1310 and 38 U.S.C. § 1318 are not warranted. The provisions of 38 U.S.C. § 1310 were considered; however, the service member did not have any service-connected disabilities and his death certificate showed that he died of natural causes. The Board also considered the provisions of 38 U.S.C. § 1318; however, the service member did not meet the qualifications of this benefit. Specifically, the service member was not evaluated as totally disabled for a service-connected disability for 10 continuous years immediately preceding his death; he was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and he was not a former prisoner of war. Thus, entitlement to DIC benefits under 38 U.S.C. § 1310 and 38 U.S.C. § 1318, must be denied. 2. Entitlement to a death pension The Appellant contends that she should be awarded death pension benefits. Death pension benefits are generally available for surviving spouses, as a result of the Veteran’s non-service-connected death. 38 U.S.C. § 1541 (a). An appellant is entitled to these benefits if the service member 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; 38 C.F.R. § 3.3 (b)(4). The service member served in the United States Naval Reserve from January 27, 1944 to April 20, 1944. He was discharged due to his age because he was fifteen years old upon entry. He was given a good discharge under honorable conditions on April 20, 1944. In sum, the Board finds that the award of death pension benefits is not warranted. The service member did serve during a period of war; however, he did not serve for 90 days or more. In addition, the evidence of record shows that the service member was not discharged from the service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability. The Board acknowledges the argument made by the Appellant’s representative in August 2019; however, the Board is without authority to grant benefits out of equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Moreover, no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Thus, for the above stated reasons, entitlement to death pension benefits must be denied. 3. 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). Here, putting aside any of the other requirements for accrued benefits, the Appellant’s claim fails because there is no evidence that the service member had a claim pending at the time of his death. Moreover, throughout the course of the appeal, the Appellant has not asserted that the service member had an unadjudicated claim or appeal pending at the time of his death. Lastly, the record reflects that there was no amount of money owed to the service member at the time of his death. For the above stated reasons, any claim for accrued benefits must be denied. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.