Citation Nr: 22017941 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-00 073 DATE: March 27, 2022 ORDER Entitlement to the payment of nonservice connected (NSC) pension benefits, for accrued benefits purposes, is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The Veteran was not entitled to the payment of NSC pension benefits at the time of his death; thus, there were no benefits due and unpaid to the Veteran at the time of his death. 2. The Veteran was not in receipt of a total rating for 10 continuous years prior to his death, was not rated as totally disabling continuously since his release from active duty and for at least 5 years preceding death and was not a prisoner of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to the payment of accrued benefits have not been met. 38 U.S.C. §§ 5111, 5121; 38 C.F.R. §§ 3.31, 3.400, 3.500, 3.1000. 2. The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1974 to August 1977. He died in October 2016. The appellant is the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) on appeal arose from a decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO), in which the RO, inter alia, denied the appellant's claims for service connection for the cause of the Veteran's death, for DIC under 38 U.S.C. § 1318, and for accrued benefits. In August 2021, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Entitlement to the payment of NSC pension benefits, for accrued benefits purposes Initially, the Board notes that a person eligible to receive accrued benefits under 38 U.S.C. § 5121 may file a request to be substituted as the claimant for the purposes of processing a claim to completion. Such request must be filed not later than one year after the date of the veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The AOJ does not appear to have considered whether substitution of the appellant as the claimant in this appeal was warranted. Nevertheless, the outcome reached in this decision would be the same whether the appellant is considered to be seeking accrued benefits or as a substitute claimant because, as explained below, even if the claim for NSC pension benefits were granted, the Veteran would not have been entitled to the payment of such pension benefits prior to his death. As such, the Board finds that an initial decision by the AOJ as to substitution would not be useful or serve any further purpose in this case. Accrued benefits are defined as periodic monetary benefits authorized under laws 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). Generally, 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). For disability pension claims received after October 1, 1984, the effective date of the award shall be the date of receipt of the claim, except as provided for in paragraph (b)(1)(ii)(B). 38 C.F.R. § 3.400 (b). If within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of the claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. § 3.400(b)(1)(ii)(B). Regardless of VA regulations concerning the effective dates of awards, generally, payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18, may not be made for any period prior to 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 for discontinuance of an award of pension, compensation, or DIC upon the death of a payee with be the last day of the month before the death occurred. 38 C.F.R. § 3.500(g)(1). The record reflects that in October 2016, eight days before his death, also occurring in October 2016, the Veteran filed a new claim for NSC pension benefits. The Veteran had a pending claim for NSC pension benefits at the time of his death. Unfortunately, he died before he was able to submit any additional evidence in support of his claim or before his claim could be adjudicated. Under these circumstances, even if the pending claim for NSC pension benefits were granted, the Veteran could not have been entitled to the payment of any NSC pension benefit. Any award would be based on his October 2016 claim for pension benefits, which is the same month that he died. He would not have been entitled to the payment of a benefit until the first day of the following month. Moreover, even if this were not the case, his benefits payments would have been discontinued prior to the effective date of his award of service connection pursuant to 38 C.F.R. § 3.500. In short, as of the date of the Veteran's death, no benefits had been accrued which were due and unpaid because he would not have been entitled to begin receiving benefit payments until after the date of his death. 38 C.F.R. § 3.31, 3.400. Considering this, the Board concludes that while the appellant would be eligible to receive all monetary benefits accrued by the Veteran at the time of his death, where there are no benefits due and unpaid as of the date of the Veteran's death, the criteria for payment of accrued benefits are not met in this case. 38 U.S.C. §§ 5111, 5121; 38 C.F.R. §§ 3.31, 3.400, 3.500, 3.1000. The Board further notes that while a July 2007 rating decision granted basic entitlement to NSC pension benefits, the Agency of Original Jurisdiction (AOJ) subsequently denied entitlement to payment of NSC pension benefits in November 2007 based on a determination that the Veteran's household income exceeded the maximum annual pension limit. The Veteran did not subsequently appeal that determination, thus the AOJ's November 2007 denial of entitlement to payment of NSC pension benefits became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. There is no indication in the record that the late Veteran subsequently attempted to apply for NSC pension benefits until the filing of his October 2016 claim. Additionally, while the Board has considered whether an earlier effective date may have been warranted based on the Veteran's October 2016 NSC pension claim, based on the July 2007 determination, he was clearly determined to be permanently and totally disabled prior the commencement of the one year period prior to his October 2016 claim. His claim was not filed within one year of the date that he was determined to be permanently and totally disabled. Thus, an earlier effective date would not have been warranted pursuant to 38 C.F.R. § 3.400(b)(1)(ii)(B). While the Board recognizes and is grateful for the late Veteran's honorable service on behalf of this country and is sympathetic with the appellant's loss of her husband, considering the evidence discussed above, there is no basis upon which to award entitlement to NSC benefits for accrued benefits purposes. Entitlement to DIC under 38 U.S.C. § 1318 is denied. A surviving spouse may establish entitlement to DIC under 38 U.S.C. § 1318 in the same manner as if a veteran's death were service-connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran was (1) continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the veteran was a former prisoner of war (POW) 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(b); 38 C.F.R. § 3.22(a). The Veteran did not have any service-connected disabilities. Thus, at the time of his death, he had not been rated by VA as totally disabled for a continuous period of at least 10 years immediately preceding his death and had not been rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding his death. There is also no evidence that Veteran was a former POW. The requirements of 38 U.S.C. § 1318 are not met. Accordingly, the criteria for establishing entitlement to DIC under 38 U.S.C. § 1318 have not been met, and the claim must be denied. The Board recognizes that the issue of service connection for the cause of the Veteran's death is being remanded to secure outstanding private treatment records and records from the Social Security Administration. The Board is also asking for an additional search of the Veteran's treatment records. However, for the reasons explained above, there would be no useful purpose in remanding the claims for NSC pension benefits or DIC under 38 U.S.C. § 1318. The requested records would not change the outcome of the decision on those issues. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death The Veteran's death certificate indicates that he died from an acute myocardial infarction with end stage kidney disease and type II diabetes mellitus as other significant conditions that contributed to his death. The death certificate also indicate that he died at Ascension All Saints Hospital. The Veteran's terminal treatment records from Ascension All Saint Hospital have not been requested or otherwise associated with the claims file. Where the identified outstanding clinical records, if obtained, could bear on the outcome of the appellant's claim for service connection for the cause of the Veteran's death, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c); see also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). A remand is thereby warranted to obtain those records. The record also reflects that prior to his death, the Veteran was in receipt of disability benefits administered by the Social Security Administration (SSA). The Veteran's disability records from the SSA have not been associated with the claims file. Records concerning SSA decisions must be obtained and associated with the claims file, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). For that reason, and because the matter already be Remanded, a request for records pertaining to his application(s) for SSA disability benefits should be made. Further, the Board notes that while VA made an attempt to obtain the Veteran's complete service treatment records (STRs), a May 2007 response to the request for his complete medical records indicated that his health records were not part of his personnel file, which had been "retired to code 13." Based on this response, it is unclear what search efforts were made to locate his STRs at that time, and there is no indication that any further search for his complete STRs was made. In order to afford the appellant every possible consideration, the Board finds that remand is also warranted in order for the AOJ to make appropriate efforts to again request the Veteran's complete STRs from appropriate sources. Finally, at her personal hearing, the appellant recalled being told that the Veteran developed diabetes in the 1980s. Such a diagnosis would have been within a few years after his separation from service. As the matter is being Remanded for the development above, the appellant should be afforded to opportunity to submit records from that period. Accordingly, this matter is hereby REMANDED for the following action: 1. Take all appropriate measures to obtain the Veteran's complete service treatment records. Contact all appropriate sources for the records, and follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain from the SSA all available records pertinent to the late Veteran's claim(s) for SSA disability benefits, as well as any medical records relied upon concerning the claim(s). 3. Ask the Appellant to provide, or to provide VA with authorization (on VA Form 21-4142) to obtain, all outstanding private treatment records pertinent to the Veteran's disabilities that ultimately caused or contributed to his cause of death, to specifically include his terminal treatment records from Ascension All Saints Hospital dated in October 2016. She should also be advised that she submit evidence pertaining to the Veteran's diagnosis and treatment for diabetes mellitus in the 1980s. Make two requests for all authorized records unless it is clear after the first request that a second request would be futile. Ensure compliance with the procedures set forth in 38 C.F.R. § 3.159. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.