Citation Nr: 18160752 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-03 014 DATE: December 27, 2018 ORDER Entitlement to dependence and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. FINDING OF FACT The Veteran was not in receipt of a total disability rating for 10 continuous years immediately preceding his death, was not rated as totally disabled continuously since his discharge from active duty and for at least 5 years preceding death, and was not a prisoner of war. CONCLUSION OF LAW The criteria for entitlement to 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 in the United States Marine Corps from June 1968 to June 1970, including service in the Republic of Vietnam. The Veteran died in October 2014. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Entitlement to DIC pursuant to 38 U.S.C. § 1318. Under 38 U.S.C. § 1318, a surviving spouse may be entitled to DIC in the same manner as if the veteran’s death were service-connected, under certain specific conditions. VA shall pay DIC under 38 U.S.C. § 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or “entitled to receive” compensation for a service-connected disability rated totally disabling provided that (1) the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death; (2) the disability was continuously rated totally disabling since the veteran’s release or discharge from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former prisoner of war who died after September 30, 1999, the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. The total disability rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. After a careful review of the evidence of record, the Board finds that the appellant’s claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted. At the time of the Veteran’s death, the Veteran was not service-connected for any disability. The Board notes that the Veteran was neither rated totally disabled for a period of not less than 5 years from the date of his discharge from active duty in June 1970, nor was he a prisoner of war with a total disability rating for a period of not less than one year immediately preceding death. Thus, the provisions of 38 U.S.C. § 1318 (b)(2), (3) are not for application. The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. As the evidence shows the Veteran was not continuously rated totally disabled during the 10 years preceding his death, was not continuously rated totally disabled since release from active duty, and was not a former prisoner of war, the legal criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. Accordingly, entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Entitlement to service connection for the Veteran’s cause of death is remanded. The appellant seeks service connection for the cause of the Veteran's death, identified on the death certificate as withdrawal of support and liver failure due to cirrhosis. Renal failure requiring dialysis was noted to be a significant condition contributing to the Veteran's death. The appellant contends that the Veteran's exposure to herbicide agents while serving in the Republic of Vietnam may have contributed to his death as diabetes mellitus II would be presumptively linked to the Veteran’s service. VA has conceded the Veteran's exposure to herbicide agents during service. In April 2012, the Veteran underwent a VA examination for his service connection claim for diabetes mellitus II. The VA examiner opined that the Veteran’s diabetes mellitus II is due to the non-service connected pituitary adenoma. The tumor was causing diabetes mellitus II prior to its removal and now continues to cause diabetes mellitus II in good control. The VA examiner then provided an addendum opinion in April 2012. The VA examiner opined that the Veteran’s diabetes diagnosis is resolved, that the Veteran no longer has diabetes mellitus II. The Veteran’s rationale for her conclusion was that the diabetes mellitus II was resolved when the Veteran acquired pituitary adenoma. In May 2012, the RO in Indianapolis, Indiana denied the Veteran’s service connection claim for diabetes mellitus II and the Veteran did not appeal that decision. The Veteran died in October 2014 and the Veteran’s surviving spouse submitted VA Form 21-534EZ, Application for DIC, death pension, and/or accrued benefits in February 2015. The RO then denied the appellant’s claim in March 2015. In a November 2016 VA medical opinion as to the Veteran’s cause of death, the VA examiner opined that the Veteran did have diabetes mellitus II at the time of his death. The VA examiner stated that once a patient has diabetes, it is usually not curable. Although for a period of time, the Veteran’s diabetes was well controlled and he was not on any medications for it, the death summary records show that the Veteran’s blood sugars were elevated and he was treated with sliding scale Lispro Insulin injections during the last hospitalization. The VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s diabetes mellitus II was not due to an intercurrent cause (i.e. pituitary tumor). Records clearly show that diabetes was first discovered/diagnosed after the pituitary surgery. Considering the temporal profile of the onset of this condition, this pituitary surgery was the most likely cause for the Veteran to have developed diabetes. On thorough review of the service treatment records (STRs), the VA examiner stated that he did not find any other treatment/diagnosis which would have at least as likely as not contributed to the Veteran’s death. While the VA examiner provided an opinion and a rationale for his conclusion, it is not complete, and therefore, inadequate because it is not clear in the records that the Veteran’s diabetes mellitus II was first discovered/diagnosed after the pituitary surgery. The VA examiner did not provide an explanation as to why the Veteran’s exposure to herbicides would not have caused the Veteran’s diabetes mellitus II, which is related to the significant condition contributing to the Veteran’s death, renal failure requiring dialysis. There are discrepancies as to the date of diagnosis for the Veteran’s diabetes mellitus II within the Veteran’s treatment records. In a letter dated in May 2002, Dr. A. K. stated that the Veteran has a significant medical history for diabetes mellitus II for the last ten years and a history of pituitary tumor with surgery in 1996. This would indicate that the Veteran has been diagnosed with diabetes mellitus II since 1992 at the latest. However, another private treatment record stated that the Veteran was diagnosed with diabetes mellitus II in January 2006. A letter from one of the Veteran’s private physicians, Dr. S. O., dated March 1997, stated that the Veteran has already been diagnosed with diabetes mellitus II. Although, a note in the Veteran’s private treatment record from August 2014 stated that his diabetes mellitus II is related to his pituitary tumor surgery. In this case, the Board cannot discern when the Veteran was actually diagnosed with diabetes mellitus, type II, whether it was prior to the diagnosis of the pituitary tumor, and if so, if that would provide clarification as to the etiology of the Veteran’s diabetes mellitus, type II. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2. As such, a remand for an adequate addendum VA medical opinion as to the Veteran’s cause of death is necessary. The matter is REMANDED for the following action: 1. Obtain an addendum opinion VA medical opinion, from the same VA examiner, if possible, to determine if the Veteran’s death was caused by a disability incurred in service. The claims file and a copy of this REMAND must be made available to, and reviewed by this examiner. The examiner must provide opinions as to: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's liver failure due to cirrhosis or his renal failure requiring dialysis contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. b. If so, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's liver failure due to cirrhosis or his renal failure requiring dialysis was incurred in service or was otherwise etiologically related to active service. c. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's liver failure due to cirrhosis or his renal failure requiring dialysis was caused by or aggravated (permanently worsened) by his diabetes. In rendering the requested opinions, the VA examiner should address the Appellant's assertions that the Veteran had diabetes secondary to his herbicide exposure and that his liver failure due to cirrhosis or his renal failure requiring dialysis was a long-term complication of his diabetes that contributed to the Veteran’s death. The VA examiner should also address the conclusion that the Veteran’s diabetes mellitus II was caused by the Veteran’s pituitary tumor. The VA examiner should reconcile the inconsistent dates of diagnosis for the Veteran’s diabetes mellitus II. The VA examiner should provide a complete rationale for all conclusions reached. If the VA examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel