[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 97-327 [ACTIVITY]{.underline}: RATING

[NAME]{.underline}: Hix v. West

[ISSUE(S)]{.underline}: Entitlement to enhanced DIC benefit

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
1-26-99

[FACTS]{.underline}: During his lifetime, this WWII veteran was assigned
a noncompensable rating for service connected residuals of a gunshot
wound. He was also in receipt of pension. He died of respiratory arrest
due to acute renal failure as a result of cirrhosis. His death was
service connected (under the provisions of 38 U.S.C. § 1151) based upon
evidence which showed his cirrhosis could have been caused by hepatitis,
which was likely to have been contracted during a blood transfusion in a
VA medical center in 1972. After she had received DIC for several years,
the veteran's widow asked if she was entitled to the higher rate of DIC,
pursuant to 38 USC § 1311(a)(2). The BVA denied her request on the basis
that the only exception to the requirement of being in receipt of total
disability benefits found in section 1311(a)(2) was in the case of the
veteran's having elected to received retired pay in lieu of VA benefits.

[ANALYSIS]{.underline}: The United States Court of Veterans Appeals
(Court) looked to the language of section 1311(a)(2) which provides an
enhanced DIC benefit if the veteran was, for eight continuous years up
until the time of death, "in receipt of or was entitled to receive" a
total disability rating. The Court stated that the determinative
question should have been whether the deceased veteran "was entitled to
receive" a total disability rating for his cirrhosis for eight
continuous years prior to the time of his death. The Court stated that
the phrase "in receipt of or entitled to receive" in section 1318(b)
"entitles the claimant to obtain a determination of whether the deceased
veteran, prior to death, hypothetically would have been entitled to
receive an award of service connection and an assignment of a total
disability rating so as to qualify under that statute. See *Wingo v
West,* 11 Vet. App. 307,311 (1998); *Carpenter v. West*, 11 Vet. App.
140, 145-46 (1998); *Green*, 10 Vet. App. At 118-19". The Court
concluded that since section 1311(a)(2) and section 1318(b) are both
located in chapter 13 and deal with DIC, the phrase "in receipt of or .
. .entitled to receive" must have the same meaning in both sections.

[IMPACT ON DECISIONMAKERS]{.underline}: Significant. In claims for
service connection for cause of death when the veteran had not been
service connected during his lifetime for the disability which is found
to have caused his death, a hypothetical rating must be done to
ascertain whether he would have been entitled to 100% for eight years
prior to his death. This hypothetical rating must be done only when the
claimant was married to the veteran for the eight years prior to death.
The only evidence which may be used in this determination is that which
is in the veteran's claims file or before VA at the time of the
veteran's death. *See Wingo*, 11 Vet. App. at 312.

[RECOMMENDED VBA ACTION(S)]{.underline}: As of this date, it is VA's
intention to recommend that this case be appealed. Accordingly, it is
recommended that an all station letter be sent to all regional offices
in which it is required that these cases be stayed pending further
litigation. If it is determined that there will be no appeal or if the
decision is affirmed on appeal 38 CFR § 3.22 must be amended or a new
regulation promulgated.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

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\_\_\_\_\_\_\_\_\_\_\_\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[4/1/99]{.underline}

Yes No Robert J. Epley Date