Citation Nr: 18143499 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-01 019 DATE: October 19, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT The Veteran was not a former prisoner of war (POW); the Veteran was not rated 100 percent disabled for the five years immediately following service separation; and a total service-connected disability rating was not in effect for 10 years at the time of the Veteran’s death. 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 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1951 to December 1970. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). DIC under the provisions of 38 U.S.C. § 1318 Under 38 U.S.C. § 1318 (a) benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was (1) rated totally disabling for a continuous period of 10 or more years immediately preceding death; (2) rated by the VA as totally disabling continuously since the Veteran’s release from active duty and for at least 5 years immediately preceding death; or (3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318(b) (2012); 38 C.F.R. § 3.22 (2018). “Entitled to receive” means that at the time of death, the Veteran had 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 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 under the provisions of 10 U.S.C. § 1174 (h)(2); (6) VA was withholding payments because the Veteran’s whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22 (2018). Except with respect to a claim for benefits under the provisions of 38 U.S.C. § 1318 and certain other cases, issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the Veteran’s lifetime. 38 C.F.R. § 20.1106 (2018). The pertinent regulation precludes a determination of “hypothetical entitlement” that entitlement could have accrued had a claim been filed. 38 C.F.R. § 3.22 (2018); Rodriguez v. Peake, 511 F. 3d 1147 (Fed. Cir. 2008). In this case, the record shows that at the time of the Veteran’s death in February 2014, service connection in effect for PTSD, rated as 50 percent disabling; peripheral neuropathy of the left lower extremity, rated as 40 percent disabling; peripheral neuropathy of the right lower extremity, rated as 40 percent disabling; diabetes mellitus with nonproliferative diabetic retinopathy, cataracts, and erectile dysfunction, rated as 20 percent disabling; peripheral neuropathy of the right upper extremity, rated as 20 percent disabling; and peripheral neuropathy of the left upper extremity, rated as 20 percent disabling. The Veteran’s combined total rating was 100 percent since August 23, 2013. The Veteran was not rated totally disabled for a continuous 10-year period prior to his death; and he was not continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, it has not been shown nor has it been alleged that the Veteran was “entitled to receive” compensation for service-connected disability rated totally disabling under any of the circumstances listed under 38 C.F.R. § 3.22(b). Based on the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C. § 1318 is not warranted in this case. Although the Board is sympathetic to the appellant, there is simply no basis in law to allow the benefits sought. Unfortunately, for the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the appellant’s claim, and that claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2018). Duty to Assist 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). REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the remaining claim can be reached. Cause of the Veteran’s Death The appellant contends that the Veteran’s service-connected diabetes mellitus contributed to his cause of death. The Veteran died in February 2014. The immediate cause of death was non-ischemic cardiomyopathy. Chronic obstructive pulmonary disease (COPD) was listed as a condition which contributed to the cause of death but was not an underlying cause of death. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2018). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(c) (2018). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312 (2018). In an April 2014 statement, D. Harris, M.D., indicated that he had treated the Veteran prior to his death since 2008. He noted that the Veteran had non-ischemic cardiomyopathy, renal insufficiency, hypotension, hyperlipidemia, and type 2 diabetes. He opined that the Veteran’s diabetes was a contributing factor in his death. An April 2014 statement from a physician from Hospice of Chattanooga indicates that the physician believes that the Veteran’s non-ischemic cardiomyopathy could have been complicated by his diabetes. An April 2014 statement from A. Khan, M.D., indicates that the Veteran had long-standing diabetes mellitus which is a chronic disease affecting multiple organ systems. Dr. Khan reported that people with diabetes mellitus are at an increased risk for developing coronary artery disease and congestive heart failure. In July 2014, a VA clinician reviewed the claims file and opined that it is less likely than not that the Veteran’s service-connected diabetes mellitus type II contributed to his death from non-ischemic cardiomyopathy and chronic obstructive pulmonary disease substantially or materially. The examiner’s rationale was that there are many different types of non-ischemic cardiomyopathy and no indication that the Veteran’s cardiomyopathy was related to his diabetes. The examiner reported that COPD is not caused or aggravated by diabetes. The examiner also noted that a prior VA examination did not show cardiomyopathy or COPD was related to diabetes mellitus and cardiology treatment records do not show why the Veteran has cardiomyopathy. The Board observes conflicting medical opinions of record. Moreover, the VA clinician who rendered the July 2014 opinion did not consider the private medical opinions of record. In light of the above, the Board has determined that an adequate opinion is required before an informed decision on the merits of the appellant’s service connection claim for cause of death can be made. Thus, a remand is warranted. The matter is REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file, including a copy of this remand, and provide an opinion as to the following: a) Is it at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran’s diabetes mellitus was a principal cause of death? In other words, did the Veteran’s diabetes mellitus, to include any manifestation or result thereof, singly or jointly with some other condition, the immediate or underlying cause of death or was etiologically related thereto? Why or why not? b) Is it at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran’s diabetes mellitus was a contributory cause of death? In other words, did his diabetes mellitus (i) contribute substantially or materially to death, (ii) combine to cause death, or (iii) aid or lent assistance to the production of death? Note: a causal connection must be shown; it is not sufficient to show that the disability casually shared in producing death. c) Is it at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran’s diabetes mellitus resulted in any debilitating effects and general impairment of health to an extent that rendered him materially less capable of resisting the effects of other diseases or injury primarily causing death? Why or why not? The examiner should consider all lay and medical evidence of record and address the appellant’s contentions that the Veteran’s history of diabetes mellitus contributed to his death. A response must be provided for each question listed above and a rationale must be provided for each opinion offered. If the clinician is unable to provide the required opinion, he or she should explain why. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information that is needed. 2. After completing the above actions and any other development deemed necessary, re-adjudicate the claim in light of all pertinent evidence and legal authority. If the claim remains denied, a supplemental statement of the case must be provided and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel