Citation Nr: 1801064 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-13 005 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1967 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision from the RO in St. Paul, Minnesota. The appellant filed for a de novo review by a DRO in September 2011. Based upon the request for a DRO review, the RO in St. Paul, Minnesota transferred the claim to the RO in Oakland, California. In April 2014, the RO in Oakland, California issued a Statement of the Case. In April 2015, the appellant filed a request for a travel Board hearing. In February 2016, the appellant withdrew her request. Thus, there is no hearing request pending at this time. FINDINGS OF FACT 1. The Veteran was not a former prisoner of war (POW). 2. The Veteran was not rated 100 percent disabled for the five years immediately following service separation. 3. The Veteran was not continuously rated totally disabled during the 10 years preceding death. CONCLUSION OF LAW The criteria for 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 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). DIC under 38 U.S.C. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran's release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former 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). For purposes of 38 U.S.C. § 1318, "entitled to receive" means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22. In this case, the appellant filed a claim for DIC benefits in January 2010 asserting that she is the Veteran's surviving spouse. On the VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child, the appellant selected that she was not claiming service connection for cause of death. The RO denied both the claim for DIC, death pension and accrued benefits, and the appellant filed a notice of disagreement appealing the RO's decision. In April 2014, the appellant filed a VA form 9 and asserted that pursuant to 38 U.S.C. § 1318 she is entitled to DIC benefits as the Veteran's surviving spouse. Initially, the Board notes that it finds that the appellant has limited her appeal to entitlement to DIC under the provisions of 38 U.S.C. § 1318 based upon her indicating on the VA Form 21-534 that she was not claiming service connection for cause of the Veteran's death, and the fact that she discussed only this theory of entitlement in her notice of disagreement and substantive appeal. After a careful review of the evidence of record, the Board finds that the undisputed evidence in this case shows that the legal requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. The evidence of record does not reflect that the Veteran was a former POW, and the appellant checked no when asked whether the Veteran was a former POW. The Veteran separated from service in September 1970. In an October 1970 rating decision, the RO awarded service connection for schizophrenic reaction, paranoid type, and assigned a 100 percent rating, effective September 27, 1970. However, in a January 1974 rating decision, the RO reduced the evaluation to 70 percent, effective April 1, 1974. Over time, the evaluation was further reduced to 50 percent, 30 percent and 10 percent, and he was in receipt of a 10 percent rating from April 1993 until he was awarded a 100 percent schedular rating in a June 2003 rating decision, effective from March 24, 2003. The Veteran died in November 2009. The Veteran did not die within five years of service discharge, and thus the five-year provision does not apply. While the Board acknowledges the appellant's contention that the Veteran was 100 percent service-connected at the time of his death, the Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death. The Veteran died in November 2009. The Veteran had a 100 percent disability rating from March 24, 2003, which is a period of less than seven years. Therefore, the legal requirement of a 100 percent rating for a 10-year period to meet the eligibility requirement for DIC 38 U.S.C. § 1318 are not met in this case. For these reasons, DIC under 38 U.S.C. § 1318 is precluded as a matter of law. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as "hypothetical entitlement." See also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. While this does not affect the outcome of the claim, the Board notes that the evidence of record strongly suggests that the Veteran and the appellant were divorced at the time of his death. For example, in a VA Form 21-526, Veteran's Application for Compensation or Pension, the Veteran wrote that he and the appellant were separated with a divorce pending. In August 2003, the Veteran selected "divorced" as his marital status on a completed VA form 21-686c, Declaration of Status of Dependents, and listed as his daughter as his only dependent, who was born in September 1987. In October 2003, the Veteran informed a social worker that he and his "ex-wife" shared joint custody of their child born in 1987. In January 2004, the VA appointed a fiduciary or payee to assist the Veteran in managing his VA benefits. In March 2004, the Veteran selected "divorced" as his marital status on another completed VA form 21-686c, Declaration of Status of Dependents, and listed the appellant's name as the person from whom he was divorced. That same month, the appellant submitted a VA Form 21-4138, Statement in Support of Claim, wherein she asked for an apportionment of the Veteran's monthly benefit and wrote that the Veteran had not lived with her and their daughter "in over 10 years." Finally, a VA Form 10-1204, Referral for Community Nursing Home Care, dated in November 2009 (which is the same month as the Veteran's death), under marital status, it had, "Divorced." The Board recognizes that the appellant is listed on the death certificate as the Veteran's surviving spouse, but that is the only document that would support they were still married at the time of the Veteran's death. Again, this does not impact the outcome of the claim, as the claim is denied as a matter of law. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) was not continuously rated totally disabled since release from active duty, or (iii) was not a former prisoner of war, the legal criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met; therefore, the appellant's claim for compensation under 38 U.S.C. § 1318 is without legal merit. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal for DIC under 38 U.S.C. § 1318, being without legal merit, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs