Citation Nr: 21024324 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-34 600 DATE: April 22, 2021 ORDER Entitlement to nonservice-connected pension benefits for accrued purposes, is denied. REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. FINDINGS OF FACT 1. On August 17, 2017, VA granted the Veteran’s claim for nonservice-connected pension benefits, effective August 8, 2017. 2. The Veteran passed away on August 28, 2017, prior to the payment day, effective September 1, 2017. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits for accrued benefits are not met. 38 U.S.C. §§ 5112, 5121; 38 C.F.R. §§ 3.500(g), 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1952 to September 1955. He passed away in August 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which notified the appellant that her claim for accrued benefits, to include nonservice-connected pension, were denied. In May 2020, the Veteran testified during a hearing over which the undersigned Veterans Law Judge of the Board presided. Unfortunately, a transcript of the May 2020 hearing was unable to be produced. By letter dated November 2020, the appellant was informed of the inability to produce a hearing transcript and offered the opportunity for a new Board hearing. The appellant responded that she did not want another hearing on the matter and to proceed with her case based on the evidence of record. See December 2020 Correspondence. This matter was before the Board in January 2021, wherein the matters were remanded for additional development. The matters have returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). The January 2021 Board decision remanded the issues of entitlement to accrued benefits for accrued purposes as the Veteran died prior to the appeal period ending. In a July 2017 rating decision, the RO had denied entitlement to service connection for dementia (also claimed as Alzheimer’s disease and metabolic encephalopathy), service connection for muscle atrophy in the lower extremities (claimed as difficulty walking), and entitlement to special monthly compensation based on aid and attendance/housebound. The Board noted that the appellant had filed a timely VA Form 21-534, Application for DIC, Death Pension, and/or Accrued Benefits, indicating that she was claiming accrued benefits. She had also filed VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. In the November 2017 decision, the RO explained that there no were accrued benefits payable to the appellant based on when the Veteran’s VA pension claim was received, but it did not address the Veteran’s pending compensation claims or whether she was a valid substitute. The Board remanded the claims in order for the RO to make a determination on the appellant’s request for substitution and to inform her about her rights to pursue the Veteran’s claims for service connection and compensation claims as either a substitute or accrued benefits claimant. Subsequently, in February 2021, the RO determined that the appellant was found to be a valid substitute. Additionally, the RO notified the appellant that she has until December 2021 to submit VA Form 21-0958, Notice of Disagreement, to continue the pending claims for service connection and compensation claims at the time of the Veteran’s death. To date, the VA has not received a Notice of Disagreement from the appellant regarding the claims for service connection and compensation and therefore, those issues are not in appellate status at this time. The Board finds that the remand orders of the January 2021 Board decision have been substantially complied with and may proceed with determination of the issues on appeal regarding entitlement to nonservice-connected pension benefits for accrued purposes and service connection for cause of death. See Stegall v. West, 11 Vet. App 268 (1998). 1. Entitlement to nonservice-connected pension benefits for accrued purposes The appellant seeks entitlement to accrued pension benefits for the period beginning August 8, 2017, based upon the Veteran's application for pension benefits received in August 2017. The VA granted the Veteran's claim for pension benefits, effective August 8, 2017, and this benefit was payable effective September 1, 2017. The appellant asserts that entitlement to accrued pension benefits is warranted for the period from August 8, 2017. Accrued benefits are defined as periodic monetary benefits authorized under law administered by VA, to which a payee was entitled at his or her 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; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). The commencement of payment of monetary benefits based on an original award of pension is the first day of the calendar month following the month in which the award became effective. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. The effective date of discontinuance of pension by reason of death of the payee is the last day of the month before death occurred. 38 U.S.C. § 5112(b)(1); 38 C.F.R. § 3.500(g). In an August 2017 rating decision, the RO granted entitlement to nonservice-connected pension benefits, effective August 8, 2017, the date the VA received his claim. Thereafter, the Veteran passed away on August 28, 2017. In November 2017, the RO notified the appellant that her claim for accrued benefits was denied because it had determined that no accrued benefits were payable because the Veteran was not owed any money at the time of his death. The RO indicated that the Veteran’s initial date of entitlement would have been August 8, 2017, payable September 1, 2017. However, since the Veteran’s death was before the September 1, 2017 payable date, there were no accrued benefits that existed. The Board acknowledges the appellant's contentions and concerns about the fact that the Veteran was awarded pension benefits prior to his death but, as noted above, the controlling law and regulations provide that the effective date of the discontinuance of the benefit is August 31, 2017, the last day of the month before his death. 38 C.F.R. § 3.500(g)(1). In other words, a payee is not entitled to VA compensation, DIC, or pension benefits for the month in which they died. Consequently, the Veteran’s death occurring in the same month as his entitlement to benefits arose essentially cancelled out his right to payment of VA nonservice-connected pension benefits that month. As such, there is no entitlement to any unpaid benefits because the benefits do not exist to be paid and the Board must deny the claim as there are no existing accrued nonservice-connected pension benefits payable to the appellant. The law is dispositive of the issue on appeal, and the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, she is not entitled to accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Board is sympathetic to the appellant's argument but, is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the appellant’s claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for the Veteran's cause of death The appellant contends that service connection for the Veteran’s death is warranted and specifically, that the Veteran was exposed to paint and cleaning solvents during his service, which in turn resulted in acute toxic metabolic encephalopathy and/or dementia and resulted in his death. The January 2021 Board decision remanded the issue to clarify whether the appellant was claiming whether the Veteran was exposed to paint solvents during his active duty and to obtain a medical opinion to determine whether service connection was warranted for his cause of death. The RO has conceded that the Veteran was exposed to cleaning products during his service but found there was no evidence that he was exposed to paints or solvents while serving as a Steward apprentice and Stewardsman in the Navy. See June 2018 Statement of the Case. The appellant responded in February 2021 that she is claiming that the Veteran was engaged in activities that involved cleaning solvents, paint stripping, and oil-based paints while on active duty service. Also, in her February 2021 correspondence, she referenced to an eBook, Stewardsman, by United States Bureau of Naval Personnel, “All water cleaning compounds, and dirt should be removed, and the floor rinsed with clear water, using a clean mop. Use fine steel wool or a rag moistened with paint thinner to remove stubborn grease and dirt.” A VA medical opinion was obtained in March 2021. The VA examiner opined that it is less likely than not that the Veteran’s acute toxic metabolic encephalopathy had its onset in service, was incurred in service, or was otherwise related to the Veteran’s active service, to include any potential exposure to cleaning products/ industrial solvents. He stated that it would be highly improbable that any in-service exposure to cleaning products/industrial solvents would play any role in an acute encephalopathy that occurred over sixty years after his separation from service. He explained that this is further supported by notation on a 2013 problem list that the Veteran was a retired teacher and notation by the appellant that he worked for eighteen years after service as a porter and a graphics illustrator. Any long term encephalopathic effects from in-service exposure would more likely than not precluded the Veteran from working as a graphics illustrator or a teacher. Additionally, the examiner noted that records from the Veteran’s December 2016 admit to Parkridge Hospital for altered mental status and encephalopathy are not found in the Veteran’s file (other than an EEG that noted a mild nonspecific generalized disorder of any etiology performed in a restless patient). The examiner indicated that December 2016 Siskin Hospital’s Subacute Rehab Program notes states Veteran had encephalopathy with increased visual hallucinations and worsened gait, no clear etiology. He found that without records from the preceding December 2016 Parkridge Hospital admit, attempts to determine the etiology of the encephalopathy, other than unclear as noted above, would be speculative. Here, the Board finds that remand is warranted as the VA examiner stated that there were no records from the December 2016 Parkridge Hospital admission and that without these records, attempts to determine the etiology of the encephalopathy, other than unclear, would be speculative. As the Veteran’s claims file does not include these records, the RO must attempt to obtain these records and a new VA medical opinion must also be obtained after they are received. The VA examiner also opined that it is less likely than not that the Veteran’s dementia had its onset in service, was incurred in service, or was otherwise related to service, to include any potential exposure to cleaning products/industrial solvents. His rationale was that the service treatment records show no evidence of the Veterans having any signs or symptoms of dementia or symptoms related to cleaning products/industrial solvents. Assuming the Veteran was exposed to industrial solvents during active service as asserted, these effects did not prevent him from working for decades after separation from service, including working as a teacher. The examiner reasoned that were he to have suffered dementia as a result to prolonged exposure to cleaning products/industrial solvents, such adverse effects would more likely than not have precluded him from working after services in the jobs he held. The examiner noted that treatment records indicate that the Veteran had vascular dementia, which is due to hypertension, hyperlipidemia, age, low BMI and a smoking history, all of which this Veteran had. He stated that the private medical opinion provided no references supporting the opinion of numerous chemical exposures during service increasing the Veteran’s risk of dementia. The examiner stated that the submitted articles were reviewed but that the notation of exposure to solvent such as Benzene and Toluene correlating with an increased risk of Alzheimer’s disease and an article noting that Benzene may be found in cleaning products and paint strippers is not pertinent to this Veteran, as he did not have Alzheimer’s dementia and is noted to have vascular dementia. Even if the Veteran had Alzheimer’s dementia, the risk factors for Alzheimer’s are similar to those for vascular dementia, being hypertension in midlife, which this Veteran had, along with elevated lipids. However, it is unclear whether the VA examiner considered the eBook, Stewardsman, to which the appellant referenced in her February 2021 correspondence that “all water cleaning compounds and dirt should be removed and the floor rinsed with clear water, using a clean mop. Use fine steel wool or a rag moistened with paint thinner to remove stubborn grease and dirt.” The examiner indicated he considered the appellant’s February 2021 correspondence, but it is unclear whether his opinion also includes consideration of exposure to paint thinners and oil-based paints. The Board finds that on remand, an addendum medical opinion is necessary to clarify whether the examiner considered that the Veteran was also exposed to paint thinners and oil-based paints during active duty service. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the appellant may identify relevant to the claim, to specifically include treatment at Parkridge Hospital in December 2016. In the alternative, inform the appellant that she may provide those records to the VA. 2. After completion of the above, obtain an addendum opinion from the VA provider who provided the March 2021 VA medical opinion (or if no longer available, an appropriate replacement). The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s acute toxic metabolic encephalopathy had its onset in service, was incurred in service, or was otherwise related to the Veteran’s active service, to include any potential exposure to cleaning products/industrial solvents/paint thinners and oil-based paints? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s dementia had its onset in service, was incurred in service, or was otherwise related to service, to include any potential exposure to cleaning products/industrial solvents/paint thinners and oil-based paints, and in turned whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s dementia caused or contributed substantially or materially to his death? The examiner should assume that the Veteran was exposed to various solvents including those used for cleaning, degreasing, paint stripping, and thinning oil-based paints during active duty service. In rendering the above opinions, the examiner must consider and address as appropriate: 1) The private medical opinion, received by VA in August 2020, finding that the Veteran’s dementia was related to the Veteran’s military service because the Veteran’s exposure to numerous chemicals during service, while not causative, would increase the Veteran’s risk of dementia; and 2) the website articles the appellant submitted in June 2020 Correspondence concerning various solvents, including an article noting that exposure to solvents such as Benzene and Toluene have been shown to correlate with an increased risk of Alzheimer’s disease and an article noting that Benzene may be found in cleaning products and paint strippers; and 3) the appellant’s February 2021 correspondence that the Veteran’s was exposed to paint thinner and oil-based paints during active duty service and reference to the eBook, Stewardsman. For all opinions expressed, the reviewer is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.