**UNITED STATES COURT OF VETERANS APPEALS**

No. 97-327

[Christine Hix, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided January 26, 1999)

*Christine Hix*, *pro se.*

*Robert E. Coy,* Acting General Counsel; *Ron Garvin*, Assistant General
Counsel; and *Ralph G. Davis* were on the pleadings for the appellee.

Before NEBEKER, *Chief Judge,* and STEINBERG and GREENE, *Judges.*

NEBEKER, *Chief Judge*: The appellant, Christine Hix, the widow of
veteran J. D. Hix, appeals a November 22, 1996, Board of Veterans\'
Appeals (Board or BVA) decision denying enhanced dependency and
indemnity compensation (DIC). The issue on appeal is whether 38 U.S.C. §
1311(a)(2) requires the Board to determine whether the deceased veteran
was entitled to receive a total disability rating for his
service-connected cause of death. For the following reasons, the Court
will vacate the Board\'s decision and remand the matter for further
proceedings consistent with this opinion.

**I. FACTS**

The veteran served in the U.S. Army and was wounded in the face during
World War II. Record (R.) at 19, 70. Although VA assigned a
noncompensable rating for the veteran\'s service-connected residuals of
a gunshot wound to the face, he eventually received VA
non-service-connected pension because of his other disabilities. R. at
70, 90-91. The veteran died from respiratory arrest due to acute renal
failure as a result of cirrhosis. R. at 130. The appellant filed a DIC
claim in which she asserted that the veteran\'s death was caused by his
having contracted hepatitis during a blood transfusion performed in a VA
hospital in 1972. R. at 133-36.

A VA medical report documented that the deceased veteran\'s cirrhosis
could have been caused by hepatitis. R. at 155. Based on this evidence,
a VA regional office (RO) resolved reasonable doubt in favor of the
appellant and awarded DIC benefits. R. at 180-82. In 1993, six years
after the RO notified her of the DIC award, the appellant inquired as to
whether she was eligible for \"the \$915 a month\" benefit. R. at 203.
The RO answered that because the deceased veteran was service connected
for gunshot wound residuals at 0% and had been receiving
non-service-connected pension upon his death, the appellant was not
entitled to receive the enhanced DIC payment. R. at 206.

In the BVA decision here on appeal, the Board concluded that 38 U.S.C. §
1311(a)(2) did not authorize payment of an increased DIC benefit. The
Board held:

> \[T\]o conclude that the veteran would have been totally disabled for
> a continuous period of at least eight years if he had applied for
> benefits 8 years prior to his death, is mere speculation and,
> consequently, provides no basis to grant the benefit sought in view of
> the governing statutory criteria.

R. at 4. Additionally, the Board determined 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 receive retired pay in lieu of VA benefits. This appeal followed.

**II. ANALYSIS**

A. General Background

Although not specifically stated by the RO in its 1987 decision awarding
service connection for the deceased veteran\'s cirrhosis and ultimate
cause of death, the award entitled the appellant to DIC benefits under
38 U.S.C. 1310(a) (statute authorizing DIC benefits when veteran dies
from service-connected disability). *See* R. at 180-82. At the time of
that decision, the RO did not determine the level of disability for the
deceased veteran\'s cirrhosis or the effective date of that disability.
Presumably, the RO did not assign a rating or effective date because, in
1987, the rate at which DIC benefits were paid was based upon the rank
of the deceased veteran, not the level of the disability. *See* 38
U.S.C. § 1311(a) (1991) (prior to 1992 amendment). However, in 1992,
Congress amended section 1311(a) by adding, in relevant part, section
1311(a)(2) which provided for a \"kicker\" 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. *See* Veterans\'
Benefits Act of 1992, Pub. L. No. 102-568, §102(a)(2), 106 Stat. 4320,
4322 (1992); H.R. Rep. No. 102-753(I), *reprinted in* 1992 U.S.C.C.A.N.
3646, 3647. Thus in 1993, the time at which the appellant had asked for
enhanced DIC benefits, 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.

However, the Board held that the statutory criterion \-- having actually
been receiving VA compensation for a totally disabling condition \-- had
not been met and did not analyze whether the deceased veteran \"was
entitled to receive\" a total disability rating. The statutory criteria
for enhanced DIC benefits are:

> The rate under paragraph (1) shall be increased by \$185 in the case
> of the death of a veteran who at the time of death was in receipt of
> or was entitled to receive (or but for the receipt of retired pay or
> retirement pay was entitled to receive) compensation for a
> service-connected disability that was rated totally disabling for a
> continuous period of at least eight years immediately preceding death.

38 U.S.C. § 1311(a)(2); *see also* 38 C.F.R. § 3.5(e)(1) (1998). Since
the deceased veteran was not \"in receipt of\" total disability
compensation for his cirrhosis condition, the issue here is whether he
could have met the alternative criterion, \"or was entitled to
receive.\" This Court has not yet interpreted the meaning of section
1311(a)(2), hence the need for a precedential opinion. *See* *Frankel v.
Derwinski*, 1 Vet.App. 23, 25-26 (1990).

B. Section 1311(a)(2) and Section 1318(b)

*1. Similar language*

Although a precedential opinion is necessary, previous decisions of this
Court have addressed virtually identical language with respect to DIC
claims under 38 U.S.C. § 1318(b). Section 1318(b) provides for an award
of DIC benefits even though the service-connected condition had not
caused the veteran\'s death when he had died under the following
conditions:

> \[N\]ot as the result of \[his or her\] own willful misconduct, and
> \[where he or she\] was in receipt of or entitled to receive (or but
> for the receipt of retired or retirement pay was entitled to receive)
> compensation at the time of death for a service-connected disability
> that either\--
>
> \(1\) was continuously rated totally disabling for a period of 10 or
> more years immediately preceding death; or
>
> \(2\) if so rated for a lesser period, was so rated continuously for a
> period of not less than five years from the date of such a veteran\'s
> discharge or other release from active duty.

38 U.S.C. § 1318(b). Although section 1318(b) differs somewhat from
section 1313(a)(2) in that section 1318(b) has two alternative minimum
time periods for the total disability rating, *see* clauses (1) and (2)
of section 1318(b) above, both 1318(b) and 1313(a)(2) use essentially
the same phrase \"in receipt of or . . . entitled to receive.\"

*2. The language \"in receipt of or entitled to receive\"*

Prior to 1982, the receipt of DIC benefits under what is now section
1318(b) required the deceased veteran to have in fact been in receipt of
a 100% service-connected rating. *Green v. Brown*, 10 Vet.App. 111, 119
(1997). In 1982, Congress added the words \"or entitled to receive\"
after \"in receipt of.\" *See id.*; *see also* Veterans\' Compensation,
Education, and Employment Amendments of 1982, Pub. L. No. 97-306, § 112,
96 Stat. 1429, 1432 (1982). It is now well settled that the phrase \"in
receipt of or entitled to receive,\" used to ascertain entitlement to
DIC benefits under 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.

Because both section 1311(a)(2) and section 1318(b) are located in
chapter 13 and deal with DIC, the Court holds that the phrase \"in
receipt of or . . . entitled to receive\" must have the same meaning in
both sections. *See Allen v. Brown*, 7 Vet.App. 439, 448 (1995) (en
banc); *see also* *Sutherland on Statutory Construction* § 46.05 (5th
ed. 1992). The 1982 amendments to section 1318(b) had been in effect for
ten years when, in 1992, the enhanced DIC benefit of section 1311(a)(2)
was created. Presumably, if Congress had wanted to restrict enhanced DIC
payments to those situations where the deceased veteran had been in
actual receipt of a 100% rating, Congress could have chosen to follow
the language of the pre-1982 version of section 1318(b). Instead,
Congress chose to use the more inclusive language,\"in receipt of or
entitled to receive,\" of the post-1982 section 1318(b). Moreover, it
appears that the primary reason for the 1992 amendments to section
1311(a), which created the enhanced DIC benefit, was to reform the DIC
payment so that it would be a level payment and not be primarily
dependent upon the rank of the deceased veteran. *See* H.R. Rep. No.
102-753(I), *supra.* Therefore, the Court holds that a claimant pursuing
enhanced DIC benefits under 38 U.S.C. § 1311(a)(2) has the right to
obtain a determination as to whether the deceased veteran hypothetically
would have been entitled to receive compensation at a total disability
rating for a continuous period of at least eight years immediately
preceding death.

C. Remedy

The 1987 RO decision contained a determination that the deceased veteran
would have hypothetically been entitled to service connection for
cirrhosis at the time of his death. However, as noted above, that RO
decision did not set an effective date for service connection for
cirrhosis or assign it a disability rating. The establishment of an
effective date and assignment of a disability rating are questions of
fact for the BVA or the RO to decide in the first instance. *See, e.g.,
Stewart v. Brown*, 10 Vet.App. 15, 17 (1997); *Johnson v. Brown*, 9
Vet.App. 7, 9 (1996); *Falzone v. Brown*, 8 Vet.App. 398, 402 (1995);
*see also* 38 U.S.C. § 7261(a)(4), (c). Therefore, the Court will vacate
the BVA decision and remand the matter for the assignment of an
effective date and level of disability for the deceased veteran\'s
cirrhosis condition. This determination should establish when, if at
all, the deceased veteran\'s cirrhosis disability would have warranted a
total disability rating.

**III. CONCLUSION**

Based on the foregoing, the November 22, 1996, decision of the Board is
VACATED as to its conclusion that the appellant did not meet the
statutory criteria of 38 U.S.C. § 1311(a)(2), and that matter is
REMANDED for further proceedings consistent with this opinion.