Citation Nr: 20007708 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-11 507 DATE: January 29, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT 1. The Veteran was rated totally disabled by service-connected disabilities, effective from January 25, 2010. 2. The Veteran died in March 2018. CONCLUSIONS OF LAW The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 to September 1978. He died in March 2018, and the appellant is his widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these issues in September 2019 for further development. A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the Veteran's death was not the result of his own willful misconduct and, at the time of death, the Veteran was receiving, or entitled to receive, compensation for a service-connected disability that was: (1) rated totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated totally disabling continuously since the Veteran's release from active duty and for a period of at least five years immediately preceding death; or, (3) rated 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. See 38 U.S.C. § 1318; 38 C.F.R. § 3.22. The Veteran here was rated totally disabled by service-connected conditions at the time of his march 2018 death; entitlement to a total disability rating based on individual unemployability (TDIU) was in effect since January 25, 2010. However, the Veteran died in March 2018, and so was rated totally disabled for only eight years and two months. Further, the Veteran was discharged in September 1978, well before receiving a total disability rating, and is not shown or alleged to have been a POW. There are no outstanding claims of service connection or effective date, and so no dispute over the above facts. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are not met. REASONS FOR REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of service connection for cause of death was remanded by the Board in September 2019 to obtain a new VA opinion. The VA examiner was asked to review the December 1983 VA examination indicating that the Veteran’s lung herniated through a defect due to the partial excision of the left anterior rib. The examiner was required to opine whether the Veteran’s service-connected disabilities, including status post resection of the left second rib, was either the principal or a contributory cause of death. The examiner did not provide such an opinion, and thus failed to comply with the Board’s September 2019 remand directives. Another remand is required to obtain an adequate opinion. The issue of entitlement to DIC under 38 U.S.C. § 1318 is inextricably intertwined with the issue of service connection for cause of death, and must now also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s cause of death is related to service. The clinician must review the claims file, especially the December 1983 VA examination indicating that the Veteran’s lung herniated through a defect due to the partial excision of the left anterior second rib. The clinician must opine as to whether the Veteran’s service-connected disabilities, including status post resection of the left second rib, was either the principal or a contributory cause of death. A comprehensive rationale is required for all opinions. 2. Then readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDermott 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.