Citation Nr: 1803451	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  09-11 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 (2012).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The appellant and her two sons



ATTORNEY FOR THE BOARD

Christopher M. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from November 1951 to March 1956.  He died in December 2001.  The appellant is the Veteran's surviving spouse.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina.  This matter was last before the Board in October 2014, whereupon it was remanded to the RO for further development of the record.  Following the issuance of a January 2016 supplemental statement of the case, the case was returned to the Board for its adjudication. 

The appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing held in July 2010 at the RO.  A copy of the transcript of the hearing is of record.  


FINDING OF FACT

The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred 45 years after his separation from active duty service, and he was not a former prisoner of war (POW).




CONCLUSION OF LAW

The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met.  38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 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.A. § 1318(b); 38 C.F.R. § 3.22(a).

The Veteran in this case was awarded a total disability rating for schizophrenia effective July 28, 1999.  Accordingly, he was not in receipt of a total disability rating during the 10 years preceding his death on December 29, 2001.  Furthermore, the Veteran died 45 years after his separation from active duty service and was not a former POW.  Therefore, there is no legal basis for entitlement to DIC under 38 U.S.C.A. § 1318.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

VA has certain duties to notify and assist claimants in the substantiation of their claims.  In this case, the claim for DIC under 38 U.S.C.A. § 1318 is denied as a matter of law.  As such, no further notice or assistance is required to the appellant. See Sabonis, 6 Vet. App. at 430 (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).


ORDER

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




____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs