Citation Nr: 21028819 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-16 036 DATE: May 12, 2021 ORDER Entitlement to accrued benefits based on service connection for a lung disorder, to include on the grounds of clear and mistakable error (CUE) in a February 2013 rating decision, is denied. FINDINGS OF FACT 1. The record does not contain a pending, unadjudicated claim for entitlement to service connection for a lung disorder filed by the Veteran, to include CUE, and he was not entitled to VA benefits under an existing rating or decision for service connection for a lung disorder at the time of his death. 2. The appellant, as the Veteran's surviving spouse, does not having standing to pursue a CUE claim for purposes of accrued benefits. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121, 5121A; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to April 1972. He died in March 2017, and the appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2018 Department of Veterans Affairs (VA) Regional Office (RO) letter denying the appellant's claim for entitlement to accrued benefits based on service connection for a lung disability. The appellant's notice of disagreement (NOD) was received in January 2019. The RO issued a statement of the case (SOC) in April 2019. The Veteran's VA Form 9, substantive appeal to the Board, was received in June 2019. In January 2020, the Board denied the claim on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court vacated the Board's January 2020 decision and remanded the matter pursuant to a November 2020 Joint Motion for Remand (JMR). As a preliminary matter, the Board notes that the appellant is a substitute claimant for accrued benefits in the Veteran's pending claims for special monthly compensation (SMC) and service connection for a heart disorder. In this respect, the appellant has opted into the modernized appeals system in connection with the service connection claim for a heart disorder, whereas the claim for SMC remains in the legacy system and has been re-certified to the Board. Nevertheless, the Board finds appellate review of the SMC claim would be premature at this time given the intertwined nature of such with the pending service connection claim for a heart disorder and, therefore, will not accept jurisdiction of the former herein. Thus, a separate Board decision will be issued at a later date, as appropriate, regarding such issue and the analysis herein is limited to the appellant's claim for accrued benefits based on service connection for a lung disorder. Accrued Benefits By way of background, the appellant filed a request for substitution of claimant upon the death of the Veteran and an application for dependency and indemnity compensation (DIC) in April 2017. In a March 2018 rating decision, the appellant was awarded DIC based upon the establishment of service connection for the cause of the Veteran's death. In August 2018, the appellant filed a second request for substitution and application for reimbursement from accrued amounts. The appellant requested accrued benefits for a lung disorder (claimed as asthma) filed in June 2012 and denied in a February 2013 rating decision. Entitlement to accrued benefits was denied in the December 2018 letter from the RO. The appellant filed a NOD in January 2019, which included an allegation of CUE in the denial for accrued benefits. The appellant filed an additional application for accrued benefits in January 2019. Applicable law provides that an individual entitled to accrued benefits may be paid periodic monetary benefits to which a veteran was entitled at the time of death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The United States Court of Appeals for the Federal Circuit 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 or her 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). A claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5); Jones, 136 F.3d at 1300. A consequence of the derivative nature of a surviving claimant's claim for entitlement to a veteran's accrued benefits is that, without the veteran having a claim pending at the time of death, the surviving claimant has no claim upon which to base his or her own application. See Jones, 136 F.3d at 1300. As an initial matter, the appellant filed her claim for accrued benefits in April 2017, within one year of the Veteran's death in March 2017. Thus, the Board finds her claim was timely filed. See 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). Substitution is possible for pending claims when a claimant dies on or after October 10, 2008. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. As the appellant is the Veteran's surviving spouse, she was found to be a valid substitute and granted standing in the Veteran's claims for SMC and service connection for a heart disorder pending at the time of his death. See April 2019 Statement of the Case and March 2018 Administrative Decision. However, while the appellant is eligible for substitution as a surviving spouse, the record does not show the Veteran had any pending claims for a lung disorder at the time of his death, and he was not entitled to any VA benefits for such under an existing rating or decision at the time of his death. Simply stated, in this case, there is no pending claim (a claim that was filed and not addressed) for the appellant to be "substituted" for the Veteran. A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. See 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. See 38 C.F.R. § 3.155(a). As of March 24, 2015, VA no longer recognizes informal claims. In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). The "intent to file" is a term of art defined by VA regulation, which can only be submitted in certain formats. Specifically, an intent to file a claim can be submitted in one of the following three ways: 1. A saved electronic application (as specified in section 3.155(b)(1)(i)). 2. A written intent on prescribed intent to file a claim form. The submission to an AOJ of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim; or 3. Oral intent communicated to a designated VA personnel and recorded in writing, as further specified in 38 C.F.R. § 3.155(b)(1)(iii). If an intent to file a claim is not submitted in the form required by 38 C.F.R. § 3.155(b)(1), as described above, or a complete claim is not filed within one year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received. 38 C.F.R. § 3.155(b)(4). In addition to the above, under current regulations, when a claimant, or other qualified individual as specified in section 3.155(a), "indicates a desire to file for benefits under the laws administered by VA, by a communication or action... that does not meet the standards of a complete claim," this is considered a request for an application form for benefits under § 3.150(a). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Further, "a veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality." See Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). The record shows that during his lifetime the Veteran submitted a service connection claim for asthma in June 2012, which the RO denied in a rating decision issued in February 2013. The Veteran did not appeal that decision or submit new and material evidence within one year. The decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Upon review, however, the Board finds there is no document of record that can be construed as a formal claim for service connection for a lung disorder that was received after the issuance of the final February 2013 rating decision and prior to the Veteran's death in March 2017. In an October 2016 NOD filed in response to an October 2016 rating decision denying SMC and service connection for cardiomyopathy, the Veteran included lung cancer in the list of disagreements. In response to the inclusion of lung cancer in the October 2016 NOD, VA sent a November 2016 letter to the Veteran informing him that a claim for lung cancer was never filed. The letter provided instructions for submitting a claim for lung cancer. Unfortunately, the evidence of record does not show that the Veteran submitted a complete application for entitlement to service connection for a lung disorder prior to his death in March 2017. The Board also acknowledges the following documents identified in the November 2020 JMR: (1) A March 22, 2016, document from Methodist Healthcare [which was scanned into the record on June 1, 2016, before the October 11, 2016, Rating Decision] noting a diagnosis of lung cancer and cardiomyopathy; (2) A June 30, 2015, document from Methodist Healthcare [which was scanned into the record on June 1, 2016, before the October 11, 2016, Rating Decision] noting a diagnosis of lung cancer and cardiomyopathy; (3) An April 15, 2016, VA examination for housebound status [filed weeks before a "blank" May 2016 Application for Benefits] that noted a diagnosis of "lung cancer"; (4) A May 13, 2016, IHD questionnaire [which was attached to an Application for Benefits filed in May 2016] noting a diagnosis of "shortness of breath"; and (5) Appellant's present award of DIC due to lung cancer. Here, the Board notes that the above documents are all dated subsequent to March 24, 2015, and, as such, cannot be accepted as informal claims for benefits under the law. Moreover, none of the aforementioned documents was submitted on one of the prescribed formats as required by 38 C.F.R. § 3.155(b)(1). Furthermore, the documents cited to within the JMR do not reflect any actual communication indicating an intent to apply for service connection for a lung disorder. Likewise, there is no indication of a general statement of intent to seek benefits coupled with a reasonably identifiable in-service medical diagnosis in the Veteran's service treatment records that may constitute an earlier claim for benefits. Sellers v. Wilkie, 30 Vet. App. 157 (2018). With respect to the current award of DIC, beyond the fact that an actual award of benefits clearly does not represent a request for such, the Board notes that the date of such award arises after the Veteran's death and cannot, therefore, be accepted as a claim pending at the time of his death. In addition, the award of service connection for the Veteran's cause of death on the basis of a lung disorder does not demonstrate that a service connection claim for a lung disorder was pending at the time of his death. As such, there was no claim pertaining to a lung disorder pending at the time of the Veteran's death in March 2017 and, therefore, no pending claim for which accrued benefits can attach; thus, the claim for accrued benefits based on service connection for a lung disorder must be denied. See 38 C.F.R. §§ 3.155, 3.160. Additionally, the Board notes that a substituted claimant may raise a new theory of entitlement in support of a claim but may not raise a new issue. See 38 C.F.R. § 3.1010(f)(2). Therefore, the appellant cannot submit a new service connection claim for a lung disorder as a substitute claimant in the Veteran's other pending claims. The appellant also alleges CUE in the February 2013 denial of service connection for a lung disability. Notably, the appellant did not identify any factual or legal error in the prior decision. Moreover, the appellant does not have standing to pursue the issue of CUE in a prior RO decision for accrued benefits purposes. In this regard, a substituted claimant can allege CUE in a prior rating decision as part of a claim for benefits in his or her own right, such as cause of death, as part of the underlying claim itself. A substitute cannot initiate a freestanding CUE claim under 38 U.S.C. § 5109A and can only appeal such a claim if it was pending at the time of the Veteran's death. In the present case, the Board finds it cannot construe any document as a formal or informal claim for CUE pending at the time of his death. Accordingly, the Board finds that the appellant does not have standing to request review of the February 2013 rating decision on the basis of CUE. The Board is sympathetic with the appellant's claim; however, it is bound by the applicable law and regulations. In this case, the record does not demonstrate any currently pending, unadjudicated claims for service connection for a lung disorder or CUE filed by the Veteran prior to his death, and he was not entitled to VA benefits for such under an existing rating decision prior to his death. Thus, the appellant has no claim upon which to base her own application for accrued benefits, and there is no legal basis for the payment of accrued benefits. The law is dispositive of the issue and, therefore, the appeal must be denied. Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426 (1994). M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.