Citation Nr: 1328981	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  10-28 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1967 to June 1970.  In September 2008, he died.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  Service connection for the cause of the Veteran's death was denied therein along with DIC pursuant to 38 U.S.C.A. § 1318.  The appellant challenged both of these determinations.  In doing so, she initially requested a hearing but later withdrew this request.  The Board remanded this matter for additional development in December 2012.

As a result of this development, a May 2013 rating decision granting service connection for the cause of the Veteran's death was issued by the Appeals Management Center.  It follows that DIC pursuant to 38 U.S.C.A. § 1318 is the sole remaining issue of this matter.


FINDING OF FACT

The grant of service connection for the cause of the Veteran's death renders moot DIC pursuant to 38 U.S.C.A. § 1318.


CONCLUSION OF LAW

DIC pursuant to 38 U.S.C.A. § 1318 is dismissed.  38 U.S.C.A. §§ 1310, 1318 (West 2002); 38 C.F.R. §§ 3.22, 3.312 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

DIC based on service connection for the cause of the Veteran's death is awarded under 38 U.S.C.A. § 1310 and its corresponding regulation 38 C.F.R. § 3.312.  DIC pursuant to 38 U.S.C.A. § 1318 and its corresponding regulation 38 C.F.R. § 3.22 applies if the cause of the Veteran's death is not service-connected.  VA is required to consider DIC pursuant to 38 U.S.C.A. § 1318 only if DIC under 38 U.S.C.A. § 1310 is denied.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  This is because DIC under 38 U.S.C.A. § 1310 is a greater benefit than DIC pursuant to 38 U.S.C.A. § 1318.  Specifically, the maximum amount paid for burial and funeral expenses when DIC is pursuant to 38 U.S.C.A. § 1310 is greater than that paid when DIC is under 38 U.S.C.A. § 1318.  38 U.S.C.A. §§ 2302, 2307; Moffitt v. Brown, 10 Vet. App. 214 (1997); Mintz v. Brown, 6 Vet. App. 277 (1994).  It is unnecessary to consider DIC pursuant to 38 U.S.C.A. § 1318 here because, as noted above, the appellant already has been awarded the greater benefit of DIC based on service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310.  DIC pursuant to 38 U.S.C.A. §1318 is moot and is, therefore, is dismissed.


ORDER

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



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs