Citation Nr: 20003047 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-24 961A DATE: January 14, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 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 had not established (and when he died did not have pending a claim for) service connection for any disability. 2. The Veteran was not continuously rated totally disabled due to service-connected disability, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death; nor would he have been in receipt of such compensation in either case, but for clear and unmistakable error in a prior decision; and he was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for entitlement to DIC benefits 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 in the United States Navy from June 1977 to June 1980. He died in April 2010. The Appellant is the Veteran’s surviving spouse. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) June 2013 rating decision of the Agency of Original Jurisdiction (AOJ). The Appellant appeared before the undersigned Veterans Law Judge at a September 2019 Board hearing. A copy of the hearing transcript has been associated with the claims file and has been reviewed by the Board. 1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 The Appellant contends that she is entitled to DIC benefits pursuant to 38 U.S.C. § 1318. Under 38 U.S.C. § 1318, Department of Veterans Affairs (VA) death benefits may be paid to a deceased Veteran’s surviving spouse in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran’s death was not the result of his or her 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 disabling 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 prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318. The total rating may be either schedular or based upon unemployability. Id. Essentially, the only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision, which were not previously considered by VA, provide a basis for reopening a claim finally decided during the Veteran’s lifetime and for awarding a total service-connected disability rating retroactively. Based on the evidence of record, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. First, the Veteran did not have any established service-connected disabilities during his lifetime, and therefore did not meet the durational requirement for a total disability rating under 38 U.S.C. § 1318. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death. Additionally, the Veteran was not a former POW. The next issue is whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran’s lifetime. The Veteran did not file a claim for service connection during his lifetime, and thus there was no decision on such a claim, or CUE in such a decision. In sum, the Board finds that the basic threshold criteria for establishing entitlement to DIC benefits under 38 U.S.C. § 1318 are not met, and the claim must be denied. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). REASONS FOR REMAND 2. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Appellant contends that service connection for the cause of the Veteran’s death should be granted as his death was caused by his exposure to asbestos while on active duty. She asserts that the Veteran had not smoked a cigarette for 15 years prior to his death; that his job in service as a radioman exposed him to asbestos in the equipment he worked with such as heat shields; and that he slept close to asbestos wrapped pipes when stationed aboard the USS Forrestal. The Appellant states further that asbestos can cause non-small cell adenocarcinoma, which the Veteran had and which resulted in his death. The Appellant provided medical research that shows that asbestos exposure can cause cancers other than mesothelioma, and that such cancer can take many years to develop although the Board notes that this medical research addresses the effects of tobacco and asbestos exposure in general and does not address the Veteran’s specific situation. At his time of death, the Veteran was not service-connected for any disabilities. The immediate cause of death listed on the Veteran’s death certificate is non-small cell carcinoma of the lung with metastasis to the spine. The Board notes that the medical examiner checked the box that states the Veteran’s tobacco use “probably” contributed to the Veteran’s death. Based, in part, on the death certificate, the AOJ determined that the Veteran’s cause of death was more likely than not a result of his tobacco use, and not any exposure to asbestos in service. The AOJ also noted that the Veteran’s three military occupational specialties (MOS’s) of Seaman Apprentice, Seaman, and Radioman have a minimal probability of asbestos exposure. The Board also notes that the Veteran may have been exposed to asbestos after he left service, but that has not been confirmed. The AOJ obtained a VA medical opinion in June 2016 which appears to be based on incomplete records. Specifically, the examiner stated that there were no medical records, VA or private, available, and that without medical records, asbestos exposure could not be confirmed on radiologic studies. Further, the examiner noted that an autopsy was not performed which could have confirmed or ruled out the presence of asbestos fibers in the lung tissue. The examiner noted that the death certificate stated that “probably” tobacco contributed to the Veteran’s death, and that tobacco use is the number one cause of bronchogenic lung carcinoma. The examiner concluded that it is less likely than not that the Veteran’s minimal probability of asbestos exposure/military service contributed to his death due to insufficient evidence and low likelihood. The examiner noted further that other essential information not identified in the file is a list of all jobs, occupations, and duties and length of time of those duties for civilian occupations, and that this is necessary information for assessing asbestos claims. The Board finds however, that additional development in this case is warranted. First, additional relevant private medical records and the Appellant’s research were added to the record in 2019 after the VA examiner’s review. Second, the Appellant also provided relevant testimony regarding the Veteran’s reported in-service asbestos exposure at a Board hearing in September 2019 to include the location of his sleeping quarters. Finally, it is unclear whether the record contains the Veteran’s complete medical records relating to treatment of his lung cancer. Thus, the Board finds that additional medical opinion and records development is warranted prior to appellate review. While the Board regrets the additional delay, a remand is necessary in order to more fully develop the Appellant’s claims. The matters are REMANDED for the following action: 1. Ensure that all of the Veteran’s medical records for treatment of non-small cell carcinoma of the lung with metastasis to the spine that are not already of record have been obtained and associated with the record on appeal. 2. Then, obtain an addendum medical opinion regarding the Veteran’s cause of death. The examiner shall be provided a copy of the Veteran’s claims file as well as a copy of these remand directives. The examiner shall provide the following medical opinion: (a.) Whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran’s non-small cell carcinoma of the lung was the result of exposure to asbestos while in service including due to his MOS as a radioman as well as his service aboard the USS Forrestal. The examiner shall address the Appellant’s contentions that asbestos exposure can cause the type of cancer the Veteran had, the fact that the Veteran not smoked for over 15 years, the medical research submitted to VA by the Appellant, and her contention that cancer caused by asbestos can, in some cases, take many years to develop. The examiner must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.