Citation Nr: 1757546	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-15 393A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for cause of the Veteran's death.

2.  Entitlement to DIC under 38 U.S.C. § 1318.

3.  Entitlement to accrued benefits. 


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs




WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Air Force from June 1951 to March 1955 and December 1955 to March 1972.  He died in January 2006.  The appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  Jurisdiction rests with the RO in Milwaukee, Wisconsin.

In March 2017, the appellant testified before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record. 

The issue of entitlement to DIC based on service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1.  The Veteran was not in receipt of total service-connected disability rating for 10 years at the time of his death, his death occurred more than 10 years after his separation from active duty service, and he was not a former prisoner of war (POW).

2.  VA received the appellant's claim for accrued benefits in January 2011, more than one year after the Veteran's death.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met.  38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2016).

2.  The criteria for entitlement to accrued benefits are not met.  38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

DIC pursuant to 38 U.S.C. § 1318

A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran's death were service connected where it is shown that the Veteran's death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death.  38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a).

The Veteran in this case had been awarded service connection for hemorrhoids, rated noncompensably disabling from April 1972.  He was therefore not in receipt of a total disability during the 10 years preceding his death in January 2006.  Furthermore, the Veteran died more than 10 years after his separation from service and was not a former POW.  Therefore, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318, and the claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Accrued Benefits

An application for accrued benefits must be filed within one year after the death of the Veteran.  See 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c).  

Here, the Veteran died in January 2006.  In January 2011, the appellant filed a claim of entitlement to accrued benefits.  The appellant does not contend, and the record does not show, that an earlier claim was ever filed.

As the claim for accrued benefits was filed more than one year after the Veteran's death, there is no legal basis on which to grant the appellant's claim for accrued benefits.  Sabonis, supra.


ORDER

Entitlement to DIC under 38 U.S.C. § 1318 is denied.

Entitlement to accrued benefits is denied.

REMAND

The Veteran's military personnel records include a certificate of his participation in Operation Ivy in the fall of 1952 and Operation Milrow in October 1969.  In November 2011, the Defense Threat Reduction Agency (DTRA) established that the Veteran was a part of Operation Ivy conducted on the Pacific Proving Ground in 1952.  As a participant it was reported he could have received no more than external gamma dose 18 rem; external neutron dose 0.5 rem; internal committed dose to the prostate (alpha) 4.5 rem; internal committed dose to the prostate (beta plus gamma) 2 rem.  In response to the appellant's assertion that the Veteran's full radiation exposure was not reviewed to include Operation Milrow, the RO sought a revised radiation dose from DTRA.  In April 2014, DTRA determined that the historical records did not document the Veteran's participation in Operation Milrow and that his Record of Occupational Exposure to Ionizing Radiation indicated that he was routinely monitored from 1968 to 1972.  As such, no additional radiation dosage was added.  However, as the report is based on an inaccurate factual premise (no participation in Operation Milrow), a revised radiation dose estimate is needed on remand.

Accordingly, the case is REMANDED for the following actions:

1. Obtain a revised radiation dose estimate based on the Veteran's confirmed participation in Operation Milrow per his service personnel records (see October 1969 certificate of participation in Project Milrow), and then, if appropriate, any further development as required under 38 C.F.R. § 3.311(c).  

2. Then after taking any additional development deemed necessary, readjudicate the issue on appeal.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs