Link to original post
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
GUADALUPE LAMBAREN, APPELLANT,
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Guadalupe Lambaren, through counsel, appeals a January
16, 2019, Board of Veterans’ Appeals (Board) decision in which the Board denied entitlement to
service connection for the cause of the veteran’s death. Record of Proceedings (R.) at 5-11. This
appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s
January 16, 2019, decision and remand the matter on appeal for further proceedings consistent
with this decision.
The veteran had active service from July 1982 to July 1985. R. at 21. His certificate of
death shows that he passed away on October 22, 2014, R. at 222, and the coroner’s report reflects
that his cause of death was atherosclerotic cardiovascular disease, with hypertensive heart disease
and cardiomegaly listed as the other conditions. R. at 232-33. At the time of his death, the veteran
had no service-connected disabilities. R. at 5.
Appellant, the veteran’s surviving spouse, filed for dependency and indemnity
compensation (DIC), accrued benefits, and death pension in November 2014. R. at 331-35. In the
December 2014 decision, the regional office (RO) denied the appellant’s claim because the
evidence shows that she and the veteran had divorced, and therefore, she cannot
Read the full thread below
Single Judge Application; the Secretary concedes that because this case involves a claim for DIC, the Board should not have applied section 5103A(d); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) discussed the Secretary's duty to provide a medical opinion in the context of a DIC claim. In that case, the Secretary argued that the duty to provide a medical examination under 38 U.S.C. § 5103A(d) is limited to claims for disability compensation, which does not encompass claims for DIC benefits. Id. at 1322. The Federal Circuit agreed, but held that the Secretary may have a duty to provide a medical opinion in connection with a DIC claim under section 5103A(a) as part of its duty to assist. Id. at 1322;
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-1856GUADALUPE LAMBAREN, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before PIETSCH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.PIETSCH, Judge: The appellant, Guadalupe Lambaren, through counsel, appeals a January16, 2019, Board of Veterans' Appeals (Board) decision...