           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                              No. 04-0845

                                  PAMELA R. SHEETS, APPELLANT ,

                                                  V.


                                    R. JAMES NICHOLSON ,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal From the Board of Veterans' Appeals


                                   (Decided     August 16, 2006 )

       Barbara S. Girard, of Lawrence, Kansas, was on the brief for the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian
B. Rippel, Deputy Assistant General Counsel; and John D. McNamee; Senior Appellate Attorney,
all of Washington, D.C., were on the brief for the appellee.

       Before GREENE, Chief Judge, and HAGEL and DAVIS, Judges.

       DAVIS, Judge: Pamela R. Sheets, widow of veteran John P. Sheets, appeals from a March
15, 2004, decision of the Board of Veterans' Appeals (Board) that, among other things, denied her
claim for accrued benefits. Pursuant to 38 U.S.C. §§ 7252(a) and 7266(a), the Court has jurisdiction
to review the Board's decision. In September 1997, Mr. Sheets filed a service-connection claim for
lung cancer secondary to nicotine dependence acquired on active duty. After his death, Mrs. Sheets
filed a claim for accrued benefits on June 17, 1998. On appeal, we must decide whether 38 U.S.C.
§ 1103 precludes a qualified survivor from receiving accrued benefits for a veteran's tobacco-related
disability on the sole basis that the survivor filed her accrued-benefits claim after June 9, 1998, the
cutoff date for filing tobacco-related claims. For the reasons that follow, we hold that section 1103
does not preclude such an award and that the Board erred when it concluded that Mrs. Sheets was
not entitled to accrued benefits as a matter of law. Accordingly, the Court will reverse the March
2004 Board decision.
                                       I. BACKGROUND
       Mr. Sheets served in the U.S. Air Force from July 1948 to October 1948 and from October
1951 to April 1971. He also served in the U.S. Army from December 1950 to April 1951. The
record indicates that he began smoking in service in 1948. In September 1997, less than two months
after he was diagnosed with small cell carcinoma, Mr. Sheets filed a service-connection claim for
"[l]ung and [c]erebellum [c]ancer due to secondary nicotine dependence acquired . . . on active
duty." Record (R.) at 605. In a December 1997 rating decision, the Denver, Colorado, regional
office (RO) denied his claim for not being well grounded (the applicable standard at the time)
because none of the medical evidence specifically linked the veteran's lung cancer to in-service
tobacco use. Within weeks of its decision, the RO received a letter from Dr. Miho T. Scott, an
oncologist who was treating the veteran's cancer. In that letter, Dr. Scott opined that the veteran's
lung cancer was caused by his use of tobacco in service. In January 1998, Mr. Sheets filed a Notice
of Disagreement. However, on May 31, 1998, while his claim was pending, Mr. Sheets died from
small cell lung cancer.
       On June 17, 1998, the veteran's widow filed claims for (1) dependency and indemnity
compensation (DIC) for service connection for the cause of her husband's death, (2) accrued benefits,
and (3) dependents' educational assistance (DEA) benefits. In the March 2004 decision here on
appeal, the Board denied all of Mrs. Sheets's claims.1 Relying on Dr. Scott's opinion, the Board
found that the veteran's lung cancer was caused by his use of tobacco in service. Despite that
finding, the Board denied Mrs. Sheets's accrued-benefits claim on the basis that an award of service
connection for lung cancer was precluded as a matter of law because Mrs. Sheets's claim was
received after June 9, 1998, the cutoff date established for tobacco-related claims pursuant to
38 U.S.C. § 1103.


                                         II. ANALYSIS
       A veteran's claim for disability compensation generally does not survive the veteran's death.
See Richard v. West, 161 F.3d 719, 721 (Fed. Cir. 1998); Landicho v. Brown, 7 Vet.App. 42, 47


       1
      As discussed below, because Mrs. Sheets did not challenge the Board's denial of her DIC
and DEA claims, the Court considers only her claim for accrued benefits.

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(1994). However, the accrued-benefits provision set forth at 38 U.S.C. § 5121 creates a mechanism
that allows a veteran's spouse, children, or dependent parents to carry on, to a limited extent, the
deceased veteran's claim for disability benefits. See Haines v. West, 154 F.3d 1298, 1300-01 (Fed.
Cir. 1998); Landicho, 7 Vet.App. at 47. Section 5121 requires VA to pay qualified survivors
periodic monetary benefits that were due and unpaid to a veteran at the time of death if, at the time
of passing, the veteran was entitled to benefits based on existing ratings, decisions, or evidence in
the file. 38 U.S.C. § 5121(a). To be eligible for such benefits, a qualified survivor must file an
accrued-benefits claim within one year of the date of the veteran's death. 38 U.S.C. § 5121(c). In
addition, if the veteran was not entitled to benefits under an existing rating or decision, but instead
was entitled to benefits based on evidence in the file at the time of death, the veteran must have had
a claim pending before VA when he or she died. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir.
1998).
         There is no dispute that Mrs. Sheets is a qualified survivor under section 5121 and that she
filed her accrued-benefits claim within one year of her husband's death. See 38 U.S.C. § 5121.
There is also no doubt that her husband had a service-connection claim for lung cancer pending when
he died. See Jones, 136 F.3d at 1299. In addition, based on the Board's finding that Mr. Sheets's
lung cancer was caused by his use of tobacco in service, it is clear that, had he lived, the veteran
would have been awarded service connection for lung cancer. See 38 U.S.C. § 1110. Yet, because
Mrs. Sheets filed her accrued-benefits claim after June 9, 1998, the Board interpreted 38 U.S.C.
§ 1103 as requiring it to deny Mrs. Sheets's claim as a matter of law.
         On appeal, the only issue before us is whether the Board correctly interpreted section 1103
as precluding a qualified survivor from receiving accrued benefits for a veteran's tobacco-related
disability on the sole basis that the survivor's accrued-benefits claim was filed after June 9, 1998, the
cutoff date for filing such claims. This Court reviews questions of law de novo without deference
to the Board's interpretation. 38 U.S.C. § 7261(a)(1); see Smith v. Gober, 14 Vet.App. 227, 230
(2000). We hold that the Board's interpretation of section 1103 was erroneous.
         Section 1103 precludes veterans from being awarded service connection for tobacco-related
illnesses attributable to their use of tobacco products in service. See 38 U.S.C. § 1103. However,
the statute only affects claims that VA receives after June 9, 1998. See 38 C.F.R. § 3.300(a) (2005).


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It neither affects veterans who established service connection prior to the statute's enactment date,
nor serves as an obstacle to those with pending tobacco-related claims that VA received by
June 9, 1998. See Stoll v. Nicholson, 401 F.3d 1375, 1380 (Fed. Cir. 2005).
       The U.S. Court of Appeals for the Federal Circuit and this Court have held that section 1103
precludes a survivor from receiving dependency and indemnity compensation for illnesses caused
by the veteran's use of tobacco in service if the survivor files the DIC claim after June 9, 1998. See
Stoll, 401 F.3d at 1381; Kane v. Principi, 17 Vet.App. 97, 102 (2003). The Secretary argues that
section 1103 should have a similar effect on claims for accrued benefits. However, because of
fundamental differences between claims for dependency and indemnity compensation and claims
for accrued benefits, we hold that section 1103 has no effect on an accrued-benefits claim if VA
received the veteran's underlying claim by June 9, 1998.
       When a veteran dies from a service-connected or compensable disability, VA is required to
pay dependency and indemnity compensation to the veteran's qualified survivors. See 38 U.S.C.
§ 1310. Dependency and indemnity compensation requires VA to make future payments to survivors
at regular monthly intervals. Unlike claims for accrued benefits, DIC eligibility is not contingent on
whether the veteran had any claims pending before VA or whether VA owed the veteran any money
at the time of death. Compare 38 U.S.C. § 5121 with 38 U.S.C. § 1310. To the contrary, a qualified
survivor is entitled to DIC benefits in the survivor's own right for being the dependent of a veteran
who died from a service-connected or compensable disability. See 38 U.S.C. § 1310(a).
Accordingly, VA treats a claim for DIC as an entirely new and original claim and adjudicates it
without regard to any prior disposition of issues during a veteran's lifetime. See Stoll, 401 F.3d at
1380; 38 C.F.R. § 20.1106 (2005).
       An accrued-benefits claim, on the other hand, is not an original claim independent of the
veteran's underlying claim, but entirely derivative of a veteran's claim. See Zevalkink v. Brown,
102 F.3d 1236, 1241-42 (Fed. Cir. 1996). The accrued-benefits provision set forth at 38 U.S.C.
§ 5121 allows a qualified survivor to stand in the deceased veteran's shoes and carry on the veteran's
claim for the limited purpose of receiving a single lump sum payment of money that was "due and
unpaid" to the veteran at the time of death. See 38 U.S.C. § 5121(a); Haines, 154 F.3d at 1300.
Because an accrued-benefits claimant's entitlement is based upon the veteran's entitlement, the


                                                  4
accrued-benefits claimant is not entitled to compensation in his or her own right, but only to money
that was owed to the veteran at the time of the veteran's death. See Zevalkink, 102 F.3d at 1241.
Moreover, by statute, an accrued-benefits claimant takes a veteran's claim exactly as it stood on the
date of the veteran's death. Id. at 1242. Thus, VA must adjudicate an accrued-benefits claim exactly
as it would have adjudicated the veteran's underlying claim, applying the same evidentiary standards,
rating decisions, and law that it would have applied to the deceased veteran's claim. See Landicho,
7 Vet.App. at 52. Accordingly, the Board should have adjudicated Mrs. Sheets's accrued-benefits
claim exactly as it would have adjudicated the veteran's claim had he not died.
        If the veteran had lived, the Board would not have denied him service connection for lung
cancer on the basis that section 1103 precluded such an award. To the contrary, section 1103 would
have been inapplicable to the veteran's claim because he filed his claim for service connection in
September 1997, well before section 1103's cutoff date. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a).
Because the Board would not have denied Mr. Sheets's claim on the basis of section 1103, we hold
that the Board erred when it denied Mrs. Sheets's claim on that basis.
        Moreover, based on the March 2004 Board decision, it is clear that at the time of his death,
Mr. Sheets was entitled to service connection for lung cancer. In its decision, the Board concluded
that the veteran's "lung cancer was caused by his tobacco use in service." R. at 3. That factual
finding satisfies the requirements for establishing service connection. See 38 U.S.C. § 1110. In
reaching its finding, the Board relied on Dr. Scott's letter, which the RO received in December 1997,
several months before the veteran died. Thus, it is clear that the letter was evidence in the veteran's
file at the time of his death. See 38 U.S.C. § 5121(a). We cannot disturb a factual finding that is
favorable to the appellant. See Roberson v. Principi, 17 Vet.App. 135, 139 (2003) (per curiam
order). Accordingly, based on the Board's finding that Mr. Sheets's lung cancer was caused by his
tobacco use in service as well as its misinterpretation of section 1103's applicability to Mrs. Sheets's
accrued-benefits claim, there is no plausible or legal basis for the Board's determination that the
appellant is not entitled to accrued benefits. Thus, the Court will reverse that portion of the Board's




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decision and remand the matter to the Board with instructions to grant Mrs. Sheets's claim for
accrued benefits. See Johnson v. Brown, 9 Vet.App. 7, 11 (1996).2


                                        III. CONCLUSION
        Based upon the foregoing, the March 15, 2004, Board decision is REVERSED with respect
to the Board's finding that Mrs. Sheets is not entitled to accrued benefits for her husband's tobacco-
related lung-cancer claim and REMANDED to the Board for further proceedings consistent with this
opinion.




        2
         In her brief, Mrs. Sheets also argues that VA failed to fulfill its duty-to-assist requirements.
The Court will not consider that argument because it is unnecessary for the resolution of this appeal.
In addition, because Mrs. Sheets failed to challenge the Board's decision regarding her claims for
DIC and DEA benefits, the Court holds that she has abandoned those claims on appeal. See Ford
v. Gober, 10 Vet.App. 531, 535 (1997).

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