Citation Nr: 18155211 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-38 567 DATE: December 3, 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 Veteran’s death is remanded. FINDING OF FACT 1. The Veteran died in February 2000. 2. The Veteran was not rated as being totally disabled as a result of a service-connected disability (or based on unemployability) for 10 continuous years immediately preceding death, was not rated as being totally disabled continuously for a period of no less than five years from the date of separation from service, nor was he a former prisoner of war who died after September 30, 1999. CONCLUSION OF LAW The criteria for DIC under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (West 2014); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1966 to October 1968, including service in the Republic of Vietnam from December 1967 to October 1968. He received various decorations evidencing combat including the Combat Infantryman Badge. The appellant seeks benefits as his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran’s death and denied entitlement to DIC under the provisions of 38 U.S.C. § 1318. DIC under the provisions of 38 U.S.C.A 1318 Where a veteran’s death is not determined to be service connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C. § 1318(a) (West 2014), benefits are payable to the surviving spouse 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 the veteran’s own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran’s death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to the appellant, the Veteran’s service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of the veteran’s separation from service. The total rating may be schedular or based on unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(c) (2018). The appellant contends that she is entitled to DIC under the provisions of 38 U.S.C. § 1318. At the time of the Veteran’s death in February 2000, he was not service-connected for any disabilities. Although the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death has not yet been decided, as the Veteran did not have any service-connected disabilities that were continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least five years from the date of his separation from service, the “totally disabling” requirement under 38 U.S.C. § 1318 and 38 C.F.R. § 3.22 has not been met. Those circumstances will not change after a decision has been made on the claim for entitlement to service connection for the cause of the Veteran’s death. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. Thus, DIC cannot be granted under the provisions of 38 U.S.C. § 1318. Accordingly, although the Board is sympathetic to the appellant in this matter, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The remaining issue on appeal is entitlement to service connection for the cause of the Veteran’s death. The Veteran died in February 2000. The death certificate lists the immediate cause of death as a “cardial vascular accident.” At the time of the Veteran’s death in February 2000, he was not service connected for any disabilities. The appellant contends that the Veteran’s death from a “cardial vascular accident” was directly associated with his exposure to Agent Orange while serving in the Republic of Vietnam. She specifically maintains that the Veteran died from ischemic heart disease and that his death from a “cardial vascular accident” is a disease subject to presumptive service connection under the provisions of 38 C.F.R. § 3.309(e) (2018). The Veteran served on active duty in the Army from October 1966 to October 1968, including service in the Republic of Vietnam from December 1967 to October 1968. He received various decorations evidencing combat including the Combat Infantryman Badge. Thus, his exposure to Agent Orange is conceded. The Veteran’s service treatment records do not show treatment for any cardiovascular disorders, to include a “cardial vascular accident”, a heart disorder, and/or a cerebrovascular accident. There are no post-service private and/or VA treatment reports of record. The Board notes that the Veteran’s February 2000 death certificate indicates that he was determined to be dead on arrival at the Cox Monett Hospital in Monett, Missouri. In February 2016, the RO requested medical records from the Cox Monett Hospital in Monett, Missouri. In February 2016, that facility indicated that records regarding the Veteran had been purged. A March 2016 request for records from, apparently, the Milwaukee, Wisconsin VA Medical Center includes a notation that the request was rejected for being a duplicate and that the request must be worked via the traditional process. There is no indication of any further requests for VA treatment records. The Board notes that there are no post-service private and/or VA treatment reports of record. The Board finds that an attempt should be made to obtain any private and/or VA treatment records regarding the Veteran’s treatment for cardiovascular disorders, to include a “cardial vascular accident,” a heart disorder, and/or a cerebrovascular accident, since his separation from service. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Board observes that there is no medical opinion of record, provided after a review of the entire claims file, which addresses whether the Veteran’s death from a “cardial vascular accident” was etiologically related to any aspects of his period of service, to include his presumed Agent Orange exposure. The Board finds that such a medical opinion must be obtained to decide this claim. The matter is REMANDED for the following action: 1. Ask the appellant to identify all medical providers who treated the Veteran for any cardiovascular disorders, to include a “cardial vascular accident,” a heart disorder, and/or a cerebrovascular accident, since his separation from service in October 1968. After receiving this information and any necessary releases, obtain copies of the related medical records that are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the appellant of such, and advise her that she may obtain and submit those records herself. 2. Notify the appellant that she may submit evidence, including by the Veteran’s treating physicians, addressing whether his death was related to service. The appellant should be provided an appropriate amount of time to submit this evidence. 3. Thereafter, make arrangements for the entire claims file to be reviewed by a physician for a medical opinion on the issue of service connection for the cause of the Veteran’s death. Based on a review of historical records and generally accepted medical principles, the physician must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that the Veteran’s “cardial vascular accident” was etiologically related to any aspect of his period of service, to include his presumed exposure to Agent Orange. The physician must specifically provide an opinion as to whether it is at least as likely as not that the Veteran’s presumed in-service exposure to Agent Orange caused or contributed to the listed immediate cause of death of a “cardial vascular accident.” STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel