Citation Nr: 18156692 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-19 318A DATE: December 11, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC), pursuant to 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The Veteran died in January 2015 and the Appellant is the Veteran’s surviving spouse. 2. The Veteran was not a former prisoner of war (POW) and was not in receipt of, or entitled to receive, compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from active service, or for 10 or more years prior to his death. CONCLUSION OF LAW The criteria for DIC benefits under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1969 to December 1972, and July 1973 to August 1991. He died in January 2015 and the Appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota which among other things, denied service connection for cause of death and entitlement to DIC pursuant to 38 U.S.C. § 1318. The Appellant filed her notice of disagreement in August 2015, was issued a statement of the case in April 2016, and in May 2016, perfected her appeal to the Board. In the May 2016 VA Form 9, the Appellant requested a live videoconference hearing. However, in October 2018, she withdrew her request for a hearing before a Board member. Accordingly, the Appellant’s hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d). The Board notes that the Appellant has submitted a Rapid Appeals Modernization Program (RAMP) Opt-In form. However, as noted in an October 2018 VA notification letter, RAMP is limited to Veterans with pending compensation benefit appeals. As the Appellant is not a Veteran with an eligible compensation benefit appeal, she is not eligible for RAMP. Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. 1318 VA death benefits may be paid to a deceased veteran’s surviving spouse or children in the same manner as if the veteran’s death was service-connected. 38 U.S.C. § 1318 (a); 38 C.F.R. § 3.22 (a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran’s discharge or other release from active duty; or the veteran was a former POW and 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 (b); 38 C.F.R. § 3.22 (a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22 (c). For purposes of the statute and regulation, “entitled to receive” includes a situation in which the Veteran would have received total disability compensation at the time of death but for clear and unmistakable error (CUE) in a decision on a claim filed during the Veteran’s lifetime. 38 C.F.R. § 3.22 (b)(1). As previously mentioned, the Veteran was discharged from active duty service in August 1991 and died in January 2015. The Veteran was in receipt of a 100 percent disability rating from May 4, 2012, a 90 percent disability rating from October 1, 2008, a 100 percent total disability rating from July 18, 2008, a 90 percent disability rating from September 1, 2006, a 100 percent total disability rating from July 27, 2005, an 80 percent disability rating from November 1, 2004, a 100 percent total disability rating from August 26, 2004, an 80 percent disability rating from April 3, 2000, a 40 percent disability rating from June 8, 1993, and a 20 percent disability rating from September 1, 1991. The Veteran was at no time in receipt of a total disability rating due to individual unemployability. Based on the foregoing evidence, the Veteran was continuously rated totally disabled for less than 3 years preceding his death; thus, does not meet the requirement, pursuant to 38 U.S.C. § 1318 (b)(1), that the Veteran be continuously rated totally disabled for a period of 10 or more years immediately preceding his death. The Veteran was in receipt of a 20 percent rating for approximately 2 years upon discharge from service; thus, does not meet the requirement pursuant to 38 U.S.C. §1318 (b)(2) that he be continuously rated totally disabled for a period of not less than five years from the date of the veteran’s discharge. In addition, the Appellant has not alleged any specific error in any prior final rating decision, which would rise to the level of an allegation of CUE. See Andrews v. Principi, 18 Vet. App. 177, 181 (2004) (holding that “[a] CUE allegation must identify the alleged error with some degree of specificity”). Therefore, there is no basis to find that the Veteran was entitled to receive total disability compensation at the time of death but for CUE in a decision on a claim filed during the Veteran’s lifetime, pursuant to 38 C.F.R. § 3.22 (b)(1). For the foregoing reasons, the Board finds that the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. The Appellant has not asserted that the Veteran met these requirements. Because the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met, and the evidentiary record has not shown that the Veteran was a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant seeks service connection for the cause of the Veteran’s death. At the time of his death, the Veteran was in receipt of service connection for prostate disorders and disabilities resulting from arthritis of multiple joints. The Veteran died from pancreatic cancer and was not service connected for this disability at the time of death. Pursuant to 38 U.S.C. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. The death of a veteran will be considered as having been due to a service related disability when the evidence establishes that such disability was either the principal or a contributory cause of death. In this case, the Veteran’s death certificate lists the immediate cause of death as metastatic pancreatic cancer. The Veteran’s service treatment records do not note any complaints or treatment for pancreatic issues. The Veteran’s May 1991 medical examination report upon retirement is normal with no complaints for stomach or pancreatic issues, and while his May 1991 medical history report notes he is not in good health, his health issues concern ankle problems and arthritis. The Veteran’s October 2014 post-service private treatment records note a pancreatic mass with multiple liver masses. In October 2014, the Veteran stated that he was recently diagnosed with pancreatic cancer with metastases to the liver after receiving a CT scan to confirm the surgical removal of an unrelated kidney stone. An August 2015 letter from the Veteran’s private physician indicated the Veteran was treated for metastatic pancreatic cancer which had spread to the liver, abdominal and thoracic lymph nodes, omentum, and lung, and progressed despite chemotherapy, ultimately leading to his death. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. Given that the Veteran died from pancreatic cancer, was in receipt of service connection for multiple disabilities, and the appellant has raised some questions as to the precise origins of the cancer, a remand is warranted to obtain a medical opinion as to whether the pancreatic cancer that caused the Veteran’s death was related to service or to a service connected disability, to include consideration of whether the service connected disabilities caused debilitating effects and general impairment of health to an extent rendered the Veteran materially less capable of resisting the effects of the pancreatic cancer. The matter is thus REMANDED for the following action: 1. Provide a copy of the Veteran’s claims file to an appropriate physician for a medical opinion to determine the nature and etiology of the pancreatic cancer that caused the Veteran’s death. 2. The physician should offer an opinion on the following questions: Was pancreatic cancer the primary cancer that caused the Veteran’s death or did it metasticize from another part of the body? Was the pancreatic cancer related to the Veteran’s military service or did it manifest within a year of separation from service? Did a service connected disability cause or contribute substantially or materially to the Veteran’s death, to include whether those involving active processes affecting vital organs resulted in debilitating effects and general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of pancreatic cancer? Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel