Citation Nr: 18157309
Decision Date: 12/12/18	Archive Date: 12/12/18

DOCKET NO. 10-02 711
DATE:	December 12, 2018
ORDER
Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied.
FINDING OF FACT
The Veteran was not continuously rated totally disabled for the 10 years immediately preceding death, was not rated as totally disabled continuously since his release from active duty and for at least 5 years preceding death, and was not a prisoner of war.
CONCLUSION OF LAW
The criteria for DIC pursuant to 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 served on active duty from January 1955 to September 1959.  He died in April 2008 and the appellant is his surviving spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  In March 2012, the appellant testified at a hearing before the Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the record.
In July 2013, March 2017, and December 2017, the Board remanded the instant matter as inextricably intertwined with the issue of whether there was clear and unmistakable error in a July 2000 rating decision that awarded a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for which a statement of the case had not been issued.  The Agency of Original Jurisdiction (AOJ) subsequently issued a statement of the case in February 2018.  However, the appellant did not perfect her appeal of such issue by filing a timely substantive appeal.  Therefore, it is not properly before the Board.  The claim of entitlement to DIC pursuant to 38 U.S.C. § 1318 now returns for further appellate review.
Entitlement to DIC pursuant to 38 U.S.C. § 1318.
A surviving spouse may establish entitlement to DIC in the same manner as if the veteran’s death were service-connected where it is shown that the veteran’s death was not the result of willful misconduct, and the veteran was (1) continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; 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.  38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a).
The Board finds the criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted.  In the instant case, the Veteran separated from service in September 1959, died in April 2008, and was not rated as totally disabled until the award of a TDIU as of September 1, 1999.  Furthermore, there is no indication that he was a prisoner of war.  As such, the Veteran was not continuously rated totally disabled for the 10 years immediately preceding death, was not rated as totally disabled continuously since his release from active duty and for at least 5 years preceding death, and was not a prisoner of war. Therefore, entitlement to DIC under 38 U.S.C. § 1318 is not warranted.   
 
A. JAEGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brennae L. Brooks, Associate Counsel