Citation Nr: 1804561 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-40 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The appellant, N.T., J.T., and B.R. ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from December 1945 to October 1949. The Veteran died in November 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In October 2017, the appellant testified before the undersigned Veterans Law Judge (VLJ) during a video conference hearing. A transcript of the hearing is associated with the claims folder. During the October 2017 hearing, the VLJ granted the motion to advance the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the time of his death, the Veteran had not been rated totally disabled for 10 continuous years immediately preceding his death and was not rated totally disabling continuously since discharge and for at least 5 years immediately preceding death. The Veteran was not a former prisoner of war. CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (West 2014); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 38 U.S.C. § 1318 Benefits The appellant is claiming entitlement to DIC benefits under 38 U.S.C. § 1318. DIC benefits are payable to a surviving spouse where it is shown that the Veteran's death was not the result of willful misconduct, and he or she was continuously rated totally disabled for the 10 years immediately preceding death, was rated as totally disabling continuously since release from active duty and for at least 5 years immediately preceding death, or was a former prisoner of war 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 (West 2014); 38 C.F.R. § 3.22. At the time of the Veteran's death, service connection was established for PTSD rated as 100 percent disabling and asbestos related pulmonary disease rated as 10 percent disabling. The Veteran was rated totally disabled effective from July 28, 2008. The Veteran died in November 2013. Accordingly, the Veteran was not rated as totally disabled for a continuous 10 year period prior to his death, or continuously rated totally disabled from the date of his discharge from active duty and for at least 5 years immediately preceding death. In addition, there is no evidence showing the Veteran was a former prisoner of war. The next issue is whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C. § 1318 would have been met, but for clear and unmistakable error (CUE) in a decision on a claim filed during the Veteran's lifetime. Review of the record does not reflect a claim concerning CUE in a prior final rating decision. In view of the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C. § 1318 is not warranted in this case. The law is dispositive and the claim is denied. ORDER Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. REMAND Several VA medical opinions were obtained in connection with the claim for service connection for the cause of the Veteran's death. However, an addendum medical opinion is required. First, the May 2014 VA examiner opined that the Veteran's service-connected disabilities, (especially his asbestos related pulmonary disease) did not contribute substantially or materially to the Veteran's death. The rationale was that it was "obvious" that the Veteran died from the natural progression of his severe and terminal "CHF and COPD conditions." The examiner stated that the Veteran's service-connected conditions played "absolutely no role" in causing or aggravating the medical conditions that resulted in his death. Such an opinion is considered inadequate. The examiner provided a conclusory rationale instead of citing to evidence of record or providing rationale in support of the expressed opinion. Additional VA medical opinions were provided in October 2014, separately considering the Veteran's service-connected posttraumatic stress disorder (PTSD) and service-connected asbestos related pulmonary disease. Concerning PTSD, in part, the examiner commented that no medical records were found related to the contribution or causal relationship between PTSD and stated causes of death and while review of the research literature indicated increased risk of PTSD and certain heart conditions/hypertension, there was no established causal link between the disorders. The examiner stated that the increased risk between the two did not account for the role of additional variables that may lead to the shared development of these disorders or predispose an individual to both PTSD and certain heart conditions/HTN. The examiner opined that it was "less likely as not" that the Veteran's service-connected PTSD substantially contributed to the Veteran's death. However, the Board finds that the examiner must specifically address whether the Veteran's service-connected PTSD caused or aggravated his cause(s) of death. In addition, the appellant submitted additional medical treatise evidence concerning the relationship between PTSD and heart disease, which must be considered by the VA examiner. With respect to the service-connected asbestos related pulmonary disease, the VA examiner opined that the Veteran's service-connected asbestos related pulmonary disease less likely as not caused or substantially contributed to the Veteran's death. The rationale was that the Veteran had severe cardiac disease and lung disease, described as severe COPD and possible diaphragm paralysis. The examiner stated that despite the lung disease, the heart disease was of sufficient severity that it would have caused death "regardless of lung function." In this case, the examiner concluded that the heart disease was of sufficient severity to cause the Veteran's death regardless of lung function, but there was no opinion provided as to whether, in the case of a vital organ, if it made the Veteran materially less capable of resisting the effects of a fatal disease or whether such service-connected disabilities had material influence in accelerating death. 38 C.F.R. § 3.312. An addendum opinion is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the claims folder to a suitably qualified VA examiner concerning the claim for service connection for the cause of the Veteran's death. Following a review of the claims folder, the examiner must address the following: *Is it at least as likely as not (50 percent or greater probability) that the cause (s) of the Veteran's death is/are causally related to active service. *Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities caused or aggravated the cause(s) of the Veteran's death; contributed substantially or materially to his death; combined to cause his death; aided or lent assistance to the production of his death; or, in the case of a vital organ, rendered the Veteran materially less capable of resisting the effects of the fatal disease or had a material influence in accelerating death. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data and medical literature. If he/she cannot render an opinion without resorting to mere speculation, an explanation for why an opinion cannot be rendered must be provided. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and allow time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs