Erika E. Taylor v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-0625

ERIKA E. TAYLOR, APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 9, 2007 )

Erika E. Taylor, pro se.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan

E. Moriarty, Deputy Assistant General Counsel; and Mark M. McNabb, all of Washington, D.C., for

the appellee.

Before KASOLD, LANCE, and SCHOELEN, Judges.

KASOLD, Judge: Mrs. Erika E. Taylor, surviving wife of veteran Theodore Taylor, appeals

pro se a January 14, 2005, decision of the Board of Veterans' Appeals (Board) that denied her claim

for accrued benefits because her deceased husband's (1) pending disability compensation claim for

a seizure disorder was not service connected, and (2) claim for an effective date earlier than June 2,

1997, for a 100% disability rating for chronic obstructive pulmonary disease (COPD) was not

pending at the time of his death. For the reasons set forth below, the Board's decision will be

affirmed in part, reversed in part, and set aside in part and remanded for further adjudication.

I. BACKGROUND

Mr. Taylor served in the U.S. Army from November 1955 to October 1958. Thereafter he

submitted a claim for disability compensation for a seizure disorder that was denied several times

but reopened in a May 2000 Supplemental Statement of the Case (SSOC) based upon new and

material evidence. Although reopened, the SSOC denied service connection for his seizures. In

September 1992, Mr. Taylor also submitted a claim for disability compensation for COPD that was

denied several times. In August 2000, his COPD service-connection claim was granted and he was

assigned a 100% disability rating, effective June 2, 1997, the date his COPD claim had been

reopened. Mr. Taylor died on September 26, 2000.

In October 2000, Mrs. Taylor filed a claim for dependency and indemnity compensation

(DIC) benefits, which necessarily included a claim for accrued benefits. See 38 U.S.C. § 5101

(b)(1); see also 38 C.F.R. § 3.1000(c) (2006). Although her claim for DIC was granted, her claim

for accrued benefits was denied and that denial was sustained by the Board for the reasons stated

above.

II. DISCUSSION

A. Applicable Accrued Benefits Law

An accrued-benefits claim is derivative of the veteran's claim. See Zevalkink v. Brown,

102 F.3d 1236, 1242 (Fed. Cir. 1996). Accordingly, an accrued beneficiary is entitled only to as

much as the veteran was entitled to at the time of his death. Id. at 1241. When a veteran's claim had

not yet become final at the time of his death, the evidence in the file at the time of death may be

reviewed to determine whether any benefits were due, and such payments may be paid to an accrued-

benefits beneficiary. See 38 U.S.C. §§ 5101, 5121(a) (2002); 38 C.F.R. § 3.1000(a); Jones v. West,

136 F.3d 1296, 1299 (Fed. Cir. 1998) (holding that if a veteran had a claim pending at death, the

accrued beneficiary may be paid any benefits due based on evidence in the file at the date of death).

B. Adjudication of Claim for Accrued Benefits

for Disability Compensation for a Seizure Disorder

Because Mr. Taylor died while his claim for disability compensation for a seizure disorder

was in administrative appellate status, the Board determined that his claim was pending at the time

of his death and considered Mrs. Taylor's accrued-benefits claim based upon evidence in the file at

the time of her husband's death. After reviewing the entire record, the Board determined that the

evidence did not establish that Mr. Taylor's seizure disorder occurred in service or within a year after

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service. It further noted that there was no competent medical evidence linking his seizure disorder

to service. The Board denied service connection. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995)

(holding that to prove service connection, a claimant must submit (1) evidence of a current disability,

(2) medical evidence or in certain circumstances, lay testimony of an in-service incurrence or

aggravation of an injury or disease, and (3) medical evidence of a nexus between the current

disability and the in-service disease or injury), aff’d per curiam, 78 F.3d 605 (Fed. Cir. 1996).

The Board's denial of service connection for Mr. Taylor's seizure disorder is plausible in light

of the record as a whole and is not clearly erroneous, and its statement of reasons and bases is

understandable and facilitative of review.1 Inasmuch as an accrued-benefits claim is derivative of

the veteran's claim, see Zevalkink, 102 F.3d at 1242, the Board properly denied Mrs. Taylor's

accrued-benefits claim associated with her husband's claim for disability compensation for a seizure

disorder.

C. Adjudication of Claim for Accrued Benefits

for Disability Compensation for COPD

In contrast to its finding that Mr. Taylor's disability compensation claim for a seizure disorder

was in administrative appellate status and therefore not final, the Board found that his disability

compensation claim for COPD was not pending at the time of his death, all payments due Mr. Taylor

had been paid to him, and there were no accrued benefits due. In concluding that there was no

pending claim, the Board found that Mr. Taylor had not initiated an appeal by filing a Notice of

Disagreement (NOD) before he died. Although this is correct, it fails to give import to the fact that

Mr. Taylor had a full year after the August 2000 RO decision, that assigned a 100% disability rating

effective June 2, 1997, to submit an NOD. See 38 U.S.C. § 7105 (b)(1); 38 C.F.R. § 20.302 (2006);

1

See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to

enable a claimant to understand the precise basis for the Board’s decision, as well as facilitate informed review in this

Court"); see also Rose v. West, 11 Vet.App. 169, 171 (1998) (finding that a Board’s determination of service connection

is reviewed under the "clearly erroneous" standard set out in 38 U.S.C. § 7261(a)(4)); Gilbert v. Derwinski, 1 Vet.App.

49, 52 (1990) (stating that a finding of material fact is clearly erroneous when the Court, after reviewing the entire

evidence, "'is left with the definite and firm conviction that a mistake has been committed'" (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948))); see also 38 U.S.C. § 7104 (a), (d)(1) (stating that decisions of the Board shall

be based on applicable provisions of law and regulation and that the Board shall provide a written statement of reasons

or bases for its conclusions).

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see also Moore v. West, 13 Vet.App. 69, 71-72 (1999) ("[A]n NOD must be filed within one year

from the date of mailing of notice of the result of initial review and determination made by the

VARO.").

Thus, at the time of his death in September 2000, almost 11 months remained of the period

in which an NOD otherwise could have been filed. This is significant because "a pending claim" is

defined by VA regulation as "an application, formal or informal, which has not been finally

adjudicated," 38 C.F.R. § 3.160(c)(2006), and this same regulation defines a "finally adjudicated

claim" as one "which has been allowed or disallowed by the agency of original jurisdiction, the

action having become final by the expiration of 1 year after the date of notice of an award or

disallowance, or by denial on appellate review, whichever is earlier." 38 C.F.R. § 3.160(d)

(emphasis added); cf. Teten v. West, 13 Vet.App. 560, 562 (2000) (finding that a deceased veteran's

claim was pending when he died after a Board decision but before the expiration of the 120-day

Notice of Appeal filing period). Because a surviving spouse takes a deceased spouse's claim "as it

stands on the date of death," Zevalkink, 102 F.3d at 1242, Mrs. Taylor filed her accrued-benefits

claim while her husband's claim was still pending, i.e., it was not yet a "finally adjudicated claim."

Inasmuch as Mr. Taylor's disability compensation claim based on COPD was not a finally

adjudicated claim at the time of his death, upon receiving Mrs. Taylor's application for accrued

benefits and assertion of error in the decision awarding her husband disability compensation with

an effective date of June 2, 1997, the Board should have reviewed his claims file to ascertain whether

the claim of error had merit or not. See 38 U.S.C. § 5121(a); Jones, supra.

The Secretary contends that there is no error warranting remand because Mr. Taylor was not

entitled to an earlier effective date (EED) as a matter of law because the effective date was the date

of his claim to reopen and no earlier date may be assigned. This contention is wrong. So too is the

Secretary's contention that, because Mr. Taylor was paid benefits back to 1997 and accrued benefits

may only be paid for the two-year period prior to the a claimant's death, i.e., only back to September

1998, Mr. Taylor could not be entitled to receive any additional benefits.

With regard to the assignment of an EED, although an effective date generally can be no

earlier than the date a claim to reopen was submitted, there are exceptions. One such exception is

when the claim is reopened based on previously missing service records, in which case the effective

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date can be as early as the "date of receipt of claim on which prior evaluation was made. " 38 C.F.R.

§ 3.400(q)(2)(2006). Accordingly, an EED is not precluded as a matter of law. Moreover, the record

on appeal contains documents suggesting that missing service medical records were obtained as part

of the reopened claim. See R. at 209. With regard to any limitation on the time period for which

accrued benefits may be paid, the Federal Circuit has rejected an interpretation that accrued benefits

could only be paid for the two-year period preceding the death of a claimant; benefits may be paid

for any two-year period that they are otherwise due and unpaid.2 See Terry v. Principi, 367 F.3d

1291, 1294-95 (Fed. Cir. 2004). To the extent that the Secretary is arguing that Mr. Taylor's receipt

of retroactive benefits for COPD from June 1997 until his death in September 2000 consumed the

maximum two-year allotment for which accrued benefits might have been paid, his argument is

inapposite. Mrs. Taylor is seeking an effective date earlier than June 1997, a period for which

benefits have not been paid. If an EED is warranted, Mrs. Taylor would be entitled to payment of

the associated accrued benefits for a period not to exceed two years.

III. CONCLUSION

That part of the Board's January 14, 2005, decision denying Mrs. Taylor entitlement to

accrued benefits related to her husband's disability compensation for a seizure disorder is

AFFIRMED, the finding of the Board that Mr. Taylor's claim for disability compensation for COPD

was final is REVERSED, and that part of the Board's decision denying Mrs. Taylor entitlement to

accrued benefits related to her husband's disability compensation for COPD is SET ASIDE and the

matter is REMANDED for further adjudication consistent with this opinion.

2

The Secretary notes correctly that the two-year limitation has been removed, but only for deaths occurring

on or after December 16, 2003. See Secretary's Brief at 11; see also Veterans Benefits Act of 2003, Pub. L. No. 108-183,

117 Stat. 2651 (Dec. 16, 2003) (amending 38 U.S.C. § 5121(a)).

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