Citation Nr: 1325404	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  10-46 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

1.  Entitlement to service connection for the cause of the Veteran's death.

2.  Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	Theodore C. Jarvi, Esq.


WITNESSES AT HEARING ON APPEAL

Appellant, S.J. (Observer)


ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1943 to September 1945.  He died in January 2009.  The appellant is his widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the RO in Phoenix, Arizona, which denied entitlement to DIC under both 38 U.S.C. § 1318 and service connection for the cause of the Veteran's death.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.

In June 2012, the appellant presented testimony relevant to her appeal at a Board hearing before the undersigned Acting Veterans Law Judge held by videoconference at the local RO.  A transcript of the hearing is associated with the record.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  The Veteran died in January 2009 as the result of congestive heart failure.

2.  The Veteran was continuously rated as totally disabled for the five-year period after his discharge from service and for at least 5 years immediately preceding death.

3.  The claim for entitlement to service connection for the Veteran's death is moot.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have been met.  38 U.S.C.A. § 1318 (West 2002 & Supp. 2012); 38 C.F.R. § 3.22 (2012).

2.  Service connection for the cause of the Veteran's death is dismissed.  38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318

VA law provides that if a Veteran's death is not determined to be service connected, a surviving spouse may still be entitled to DIC benefits.  Under 38 U.S.C.A. § 1318(a) benefits are payable to the surviving spouse of a deceased Veteran in the same manner as if the death were service connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was 1) rated totally disabling for a continuous period of 10 or more years immediately preceding death; 2) rated by the VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or 3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999.  38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2012) (emphasis added).

DIC benefits granted to a surviving spouse under § 1318 are paid in the same manner as if the Veteran's death were service connected.  See 38 U.S.C.A. § 1318(a).  In the present case, the Board finds that the Veteran was continuously rated as totally disabled for the five-year period after his discharge from service and for at least five years immediately preceding death.

The Veteran served on active duty service from February 1942 to September 1945.  The record reflects that the Veteran was rated as 100 percent disabling from September 19, 1945 to December 23, 1951.  This is a period of six years and three months.  The record also reflects the Veteran was receiving a rating total disability based upon individual employability (TDIU) from February 18, 1999 until his death in January 2009.  

The Board finds that since the Veteran was continuously rated as totally disabled for the five-year period after his discharge from service and rated as totally disabled for the five-year period immediately preceding his death, the appellant is eligible for DIC benefits under 38 U.S.C.A. § 1318(b)(2).

DIC benefits granted to a surviving spouse under § 1318 are paid in the same manner as if the Veteran's death were service connected.  See 38 U.S.C.A. § 1318(a).  In the present case, as DIC benefits have already been granted in this decision based upon 38 U.S.C.A. § 1318(b)(2), the award of service connection for the cause of the Veteran's death is rendered moot.  The Court has indicated that, only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  That is, 38 U.S.C.A. § 1318 provides an alternate basis for an award of DIC and does not provide any additional benefit for the appellant.  In summary, in light of the grant of service connection for DIC under 38 U.S.C. § 1318, the claim of entitlement to service connection for the Veteran's death under 38 U.S.C. § 1310 is moot, and the claim is dismissed.



ORDER

Entitlement to DIC pursuant to 38 U.S.C.A. § 1318 is granted.

The appeal to establish service connection for the cause of the Veteran's death is dismissed.



____________________________________________
C. L. KRASINKSI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs