Citation Nr: 18143794 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-12 759 DATE: October 23, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran's service-connected disabilities were not continuously rated totally disabling for 10 years prior to his death, the total disability evaluation was not in effect from the date of discharge from military service, and he was not a former prisoner of war. CONCLUSION OF LAW The criteria for establishing entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 5103, 5103A, 5107; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to October 1967 in the United States Army, with service in the Republic of Vietnam from October 1966 to October 1967. He died in 2015, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the appellant testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. The electronic filing system contains several pages of VA treatment records that were associated with the file by VA since the RO’s last readjudication of the claims. However, as the documents are not pertinent to the 38 U.S.C. § 1318 claim adjudicated below, there is no risk of prejudice to the appellant from proceeding without the waiver. 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318 (a), benefits are payable to the surviving spouse and to the children of a deceased Veteran in the same manner as if the death were service-connected. A "deceased Veteran" for purposes of this provision is a Veteran who dies not as the result of his/her own willful misconduct, and who was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The service-connected disability(ies) must have been: (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the Veteran's death; or (2) continuously rated totally disabling since the Veteran's discharge or other release from active duty and for at least 5 years immediately preceding death; or (3) the Veteran 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. Id. The total disability rating may be schedular or based on individual unemployability under 38 C.F.R. § 4.16. 38 C.F.R. § 3.22 (c). "Entitled to receive" means that, at the time of death, the Veteran had service-connected disability(ies) rated totally disabling by VA but was not receiving compensation for reasons specified in the regulations which are not relevant here (such as withholding or waiver of payment), or because the Veteran had applied for compensation but had not received total disability compensation due solely to CUE in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22 (b). Claims under 38 U.S.C. § 1318 are adjudicated based on decisions rendered during the Veteran's lifetime. 38 C.F.R. § 20.1106. Thus, the only possible ways for the appellant to prevail on a claim for benefits under 38 U.S.C. § 1318 would be: (1) meeting the statutory duration requirements for a total disability rating at the time of death; or (2) showing that such requirements would have been met but for CUE in a decision on a claim filed during the Veteran's lifetime. At the time of the Veteran's death in 2015, he was service-connected for posttraumatic stress disorder (PTSD) (70 percent disabling). He had also been in receipt of a total rating based on individual unemployability (TDIU) since December 18, 2012. While he was in receipt of a TDIU, it had only been in effect for a little more than two years at the time of his death. Thus, he was not rated totally disabled for a period of 10 or more years preceding death, or since his 1967 discharge and for at least 5 years before death. He was also not a former prisoner of war. There is nothing in the record indicating, nor has the appellant alleged, that the Veteran should have been receiving, or was entitled to receive, compensation at the total rate prior to December 2012, and it has not been alleged that any prior rating decision was clearly and unmistakably erroneous. See Cole v. West, 13 Vet. App. 268 (1999). The threshold legal criteria for benefits under 38 U.S.C. § 1318 have not been met, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In so concluding, the Board in no way intends to minimize the Veteran's sacrifices during his military service, or the appellant's sincerity in pursuing her claim. However, the Board is obligated to decide cases based on the evidence before it. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (holding that the Board is bound by the law and is without authority to grant benefits on an equitable basis). REASONS FOR REMAND Initially, although the appellant filed her claim using a Fully Developed Claim form (EZ claim), the file does not show that notice pursuant to Hupp v. Nicholson, 21 Vet. App. 342 (2007) was provided to her. While on remand, notice pursuant to Hupp should be provided. The Veteran’s death certificate indicates that the immediate cause of death was pulmonary fibrosis. Hypertension is listed as a significant condition contributing to death. As noted above, the Veteran was service-connected for PTSD during his lifetime. A VA medical opinion addressing several matters must be obtained. First, the appellant asserts that the Veteran’s service-connected PTSD aggravated his hypertension, a contributory cause of his death. She has submitted medical literature in support of this. She also contends that his hypertension, a contributory cause of death, was directly related to his presumed exposure to herbicide agents during service in the Republic of Vietnam from October 1966 to October 1967. While hypertension is not included in the list of diseases presumed to be associated with herbicide agent exposure, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Further, she argues that he had ischemic heart disease (IHD), a condition presumptively associated with herbicide agent exposure, which also contributed to his death. The record as to whether he had IHD is unclear, as a March 2013 Disability Benefits Questionnaire examiner found he did not have IHD, but VA treatment records from January 2007 and August 2008 document atherosclerosis of the coronary arteries. If he had IHD, it is unclear whether it contributed to death. There is also evidence indicating a possible connection between his immediate cause of death and service. In a September 2014 private treatment record, the Veteran’s past medical history included, “interstitial pulmonary fibrosis diagnosed in 2011 via lung biopsy, felt to be secondary to possible Agent Orange from Vietnam service.” A rationale for this statement, however, was not provided. In addition, service treatment records show that in June 1966 he was treated for acute pharyngitis. On VA examination in 2009, he reported having breathing problems for 30 years. The matter is thus REMANDED for the following action: 1. Provide the appellant with a VCAA notice letter regarding the claim for service connection for the Veteran’s cause of death that complies with Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. Forward the claims file to a VA examiner to provide an opinion regarding the claim for service connection for the cause of the Veteran's death. A rationale must be provided for all opinions rendered. (A) Opine on whether it is at least as likely as not that the Veteran’s immediate cause of death, pulmonary fibrosis, began during active service or was related to any incident of service, including his in-service herbicide agent exposure in the Republic of Vietnam from October 1966 to October 1967. In doing so, please consider: • In June 1966, he was treated for acute pharyngitis • On VA examination in 2009, he reported having breathing problems for 30 years. • In a September 2014 private treatment record, the Veteran’s past medical history included, “interstitial pulmonary fibrosis diagnosed in 2011 via lung biopsy, felt to be secondary to possible Agent Orange from Vietnam service.” (B.) Opine on whether it is at least as likely as not that hypertension, a contributory cause of death, began during active service or was related to any incident of service, including in-service herbicide agent exposure. In doing so, the examiner must address the National Academy of Sciences update which concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide agent exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014). (C.) Opine on whether the Veteran had ischemic heart disease during his lifetime and the basis for the finding. In doing so, please consider: • March 2013 Disability Benefits Questionnaire finding he did not have IHD • VA treatment records from January 2007 and August 2008 documenting atherosclerosis of the coronary arteries IF he had IHD, opine on whether the IHD (i.) primarily caused death, (ii,) substantially contributed to death, (iii.) resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the diseases primarily causing death, or (iv.) was of a progressive or debilitating nature, such that it had a material influence in accelerating death. (D.) Opine on whether it is at least as likely as not that the Veteran’s service-connected PTSD caused or contributed substantially or materially to his death. In doing so, please consider: • Medical literature submitted by the appellant indicating that PTSD may worsen hypertension. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel