Citation Nr: 18144979 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-32 164 DATE: October 25, 2018 ORDER 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 was in receipt of a 100 percent disability rating for less than 10 years. CONCLUSION OF LAW The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1960 to August 1978. He died in April 2013. The appellant is his surviving spouse. This matter is on appeal from a June 2013 rating decision. The Veteran testified at a Board hearing in October 2018. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). DIC under 38 U.S.C. § 1318. The question for the Board as to this issue is whether the Veteran was in receipt of a 100 percent disability rating for at least 10 years prior to his death. This is one avenue to for DIC benefits to be awarded. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s spouse in the same manner as if the Veteran’s death was service connected, even though the Veteran died of nonservice-connected causes. This benefit may be paid if the Veteran’s death was not the result of his own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabled continuously since the Veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Here, the Veteran was in receipt of a TDIU from January 16, 2004. As he died in September 2003, this 100 percent disability rating was in effect for less than 10 years. These facts are not in dispute. Although the Board is sympathetic to the circumstances, this issue is governed by the passage of time. As such, the appeal of this issue is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Service connection for the cause of the Veteran’s death. The appellant maintains that the cause of the Veteran’s death was related to a service-connected disability. The April 2013 Certificate of Death identifies the Veteran’s immediate cause of death as respiratory failure with the underlying causes as sepsis and pneumonia. The Certificate of Death also identifies renal failure; cirrhosis; septic shock; and alcohol dependence as significant conditions contributing to death (but not resulting in the underlying cause of death). The Veteran’s was not service connected specifically for any of those conditions. However, service connection was in effect during his lifetime for multiple disabilities. As relevant here, these service-connected disabilities included (1) posttraumatic stress disorder (PTSD), (2) diabetes mellitus, type II (diabetes); and (3) congestive heart failure (CHF) with coronary artery disease (CAD) and coronary artery bypass (herein after “heart disease”). In connection with the current claim, the appellant has raised three theories of entitlement. First, she contends that the alcohol dependence listed on the Certificate of Death was secondary to the service-connected PTSD. Second, she contends that the renal failure listed on the Death Certificate was secondary to the service-connected diabetes. Third, she contends that the Veteran’s service-connected heart disease contributed to the Veteran’s death even if not listed on the Certificate of Death. On this basis, this issue is remanded to (1) obtain potentially missing VA and private (non-VA) medical records, and (2) obtain a medical opinion. With regard to the VA medical records, the claims file currently includes some VA medical records up to the month of the Veteran’s death. However, it is not clear if these are complete. Accordingly, upon remand, the RO should obtain all outstanding VA medical records. With regard to the private medical records, the Certificate of Death identifies the Veteran as having died as an in-patent in a private (non-VA) hospital [Scott and White Memorial Hospital]. Those private medical records are not in the claims file. Likewise, his available VA medical records state, for instance, in January 2013 that the Veteran had private treatment in Puerto Rico prior to January 2011 with Dr. Schwam. These records should be obtained. The available medical records are otherwise limited. Accordingly, upon remand, the appellant should be asked to identify all treatment providers and facilities who treated the Veteran during his lifetime for diabetes, heart disease, and PTSD. Regarding the need for a VA medical opinion, this should address the three theories contended. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the appellant to complete a VA Form 21-4142 for all treatment providers and facilities who treated the Veteran during his lifetime for diabetes, heart disease, and PTSD, to the best of her recollection. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain an opinion from an appropriate clinician(s) regarding whether the cause of the Veteran’s death was at least as likely as not related to service or, alternatively, proximately due to or aggravated beyond its natural progression by a service-connected disability. (Continued on the next page)   The theories are reiterated as: First, she contends that the alcohol dependence listed on the Certificate of Death was secondary to the service-connected PTSD. Second, she contends that the renal failure listed on the Death Certificate was secondary to the service-connected diabetes. Third, she contends that the Veteran’s service-connected heart disease contributed to the Veteran’s death even if not listed on the Certificate of Death. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel