Citation Nr: 21029396 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-14 321 DATE: May 13, 2021 ORDER Entitlement to additional Dependency and Indemnity Compensation (DIC) benefits based on the Veteran's pay grade under 38 U.S.C. § 1311 and 38 C.F.R. § 3.10 is denied. FINDING OF FACT The Veteran's highest pay grade when he was released from active duty service in June 1968 was first lieutenant, O-2; the Veteran was discharged from the Army Reserve in February 1973 at the pay grade of captain, O-3, but with no record of active duty for training or inactive duty for training. CONCLUSION OF LAW The criteria for entitlement to additional DIC benefits based on the Veteran's pay grade under 38 U.S.C. § 1311 and 38 C.F.R. § 3.10 have not been met. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. §§ 3.10, 3.21. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1965 to June 1968, to include service in the Republic of Vietnam. The Veteran also had service in the United States Army Reserve afterwards. The Veteran was awarded, among other decorations, the Bronze Star Medal with "V" device and Oak Leaf Cluster (indicating, respectively, that the award was made for an act of valor in combat and that it was awarded twice), the Army Commendation Medal, the Combat Infantryman Badge, and the Vietnam Service and Campaign Medals. The Veteran died in November 1991. The appellant is his surviving spouse. This case is on appeal from January 2013 and March 2015 rating decisions. In the April 2015 substantive appeal (VA Form 9), the appellant requested a video conference hearing with the Board of Veterans' Appeals (Board). The hearing was scheduled for April 2018; however, in April 2018, prior to the hearing, the appellant's representative indicated that the appellant would not be attending the hearing. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn. See 38 C.F.R. § 20.704(e). This case was previously before the Board in July 2018, at which time the Board denied the appellant's claim for additional DIC benefits, as well as the claim for accrued benefits payable to the Veteran at the time of his death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued a May 2020 Memorandum Decision affirming the Board's denial of the claim for accrued benefits payable to the Veteran at the time of his death. However, the May 2020 Memorandum Decision vacated that portion of the Board's July 2018 decision that denied entitlement to additional DIC benefits and remanded the matter for further proceedings. In December 2020, the Board determined that a remand was necessary to attempt to ascertain the information regarding the Veteran's pay grade during his period of service in the Army Reserve after 1968. The RO then obtained the Veteran's military personnel records containing information regarding his service in the Army Reserve since 1968. Thus, the Board finds that VA's duty to assist has been fulfilled, and that there is substantial compliance with the Board's remand instructions. Entitlement to additional DIC benefits based on the Veteran's pay grade under 38 U.S.C. § 1311 and 38 C.F.R. § 3.10. The appellant claims she is entitled to additional DIC benefits that were received following the January 2013 decision based on her husband being discharged from service with the rank of O-3. See March 2013 NOD. DIC is payable to a veteran's surviving spouse when the veteran dies from a service-connected disability. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5(a). 38 C.F.R. § 3.10(d) provides that the basic monthly rate of DIC for a surviving spouse when the death of the veteran occurred prior to January 1, 1993, as in this case, will be the amount specified in 38 U.S.C. § 1311(a)(3) corresponding to the veteran's pay grade in service, but only if such rate is greater than the total of the basic monthly rate and the section 1311(a)(2) increase (if applicable) the surviving spouse is entitled to receive under paragraphs (b) and (c) of § 3.10. In addition, the regulation provides that DIC paid pursuant to this paragraph may not be increased by the section 1311(a)(2) increase under paragraph (c) of this section. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(2), (24); 38 C.F.R. § 3.6(a). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 C.F.R. § 3.6(d)(4). 38 U.S.C. § 1302 prescribes how a veteran's pay grade will be determined. If the veteran did not die in active service, the veteran's pay grade shall be determined as of (1) "the time of such veteran's last discharge or release from active duty under conditions other than dishonorable," or (2) "the time of such veteran's discharge or release from any period of active duty for training or inactive duty training, if such veteran's death results from service-connected disability incurred during such period and if such veteran was not thereafter discharged or released under conditions other than dishonorable from active duty." 38 U.S.C. § 1302(b)(1)-(2). Subsection (d) also provides that if a veteran has satisfactorily served on active duty for a period of six months or more in a pay grade higher than that specified in subsection (a) or (b)...the higher pay grade shall be used if it will result in greater monthly payments.... The determination as to whether an individual has served satisfactorily for the required period in a higher pay grade shall be made by the Secretary of the department in which such higher pay grade was held. 38 U.S.C. § 1302(d). The Veteran's service personnel records clearly reflect that he was at a pay grade of first lieutenant, O-2, when he was released from active duty in June 1968 with a terminal date of Reserve obligation in June 1971. See DD Form 214. The appellant submitted a copy of a Certificate of Honorable Discharge from the U.S. Army Reserve in February 1973 at the pay grade of captain, O-3. During a November 1994 RO hearing, the appellant testified that the Veteran attended law school starting in August 1968, graduated in two years, and passed the bar examination in 1970. After a December 2020 remand from the Board, the RO obtained the Veteran's additional military personnel records relating to his service in the Army Reserve to determine whether the Veteran had active duty service after June 1968. A review of the records received noted an August 1971 Statement of Retirement Points from the Office of the Adjutant General that showed that there were no duty transactions (no reserve duty/no active duty) and no retirement points earned for the period from June 22, 1970 to June 21, 1971. A July 1972 memorandum from the U.S. Army Reserve Components Personnel and Administrative Center noted that the Veteran was promoted to captain effective June 22, 1971 at O-3. A December 1972 Ready Reserve Service Agreement noted the Veteran's election to be discharged and no longer remain in the Ready Reserve. There was no report of the Veteran serving active duty, active duty for training, inactive duty, or inactive duty for training from the date of his promotion to captain in 1971 through the date of his discharge from the Army Reserve in February 1973. A February 1973 memorandum from the Office of the Adjutant General confirmed that the Veteran was discharged from the Army Reserve (Ready Reserve Component) effective February 15, 1973. Due to the fact that the Veteran was a member of the Ready Reserve and did not have active duty for training or inactive duty training from the time of his promotion to captain at a pay grade of O-3 to the time of separation from the Ready Reserve in February 1973, no additional DIC benefits are owed to the appellant above those already paid. The Board notes that 38 C.F.R. § 3.10(c) includes provisions for an increase to the basic monthly amount set out in paragraph (b). See 38 U.S.C. § 1311(a)(2). This increase is applicable in cases where the veteran, at the time of death, was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least eight years immediately preceding death. Such does provision does not apply to the present case because the Veteran had no VA rated disabilities for any purpose at the time of death. While the Board is sympathetic to the appellant's claim and the circumstances surrounding this appeal, the appellant was in receipt of the maximum amount of DIC benefits available under the law applicable to the facts in this case. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10. Thus, her claim for additional DIC benefits must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.