Citation Nr: 20036742 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 20-13 215 DATE: May 28, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. Entitlement to non-service-connected death pension benefits is remanded. FINDINGS OF FACT 1. The Veteran was not continuously rated totally disabled for the 10 years immediately preceding his death, he was not rated as totally disabled continuously since his release from active duty and for at least 5 years preceding his death, and he was not a prisoner of war. 2. There were no claims for benefits pending at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for an award of DIC under 38 U.S.C. § 1318 have not been met.  38 U.S.C. § 1318; 38 C.F.R. § 3.22. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a), (d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1956 to March 1978. The Veteran died in March 2018, and the appellant is the Veteran’s surviving spouse. The matter stems from an April 2018 rating decision. DIC Under 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC under 38 U.S.C. § 1318 in the same manner as if the veteran’s death were service-connected when 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 5 but less than 10 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 DIC pursuant to 38 U.S.C. § 1318 have not been met. The Veteran separated from service in March 1978. He had a combined 10 percent rating effective April 1, 1978, a combined 40 percent rating effective May 12, 2014, and a 100 percent rating effective February 23, 2016. Accordingly, at the time of his death in March 2018, the Veteran was not continuously rated as totally disabled either upon his separation from service or for 10 years preceding his death. There is likewise no evidence or contention that the Veteran was a prisoner of war. Therefore, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. Accrued Benefits Accrued benefits are “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). The appellant takes the veteran’s claims as they stood on the date of the veteran’s death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In other words, entitlement to accrued benefits requires the presence of a claim filed with VA that had not been finally adjudicated on or before the veteran’s date of death. 38 C.F.R. § 3.1000(d)(5). There were no claims pending at the time of the Veteran’s death that could be the basis for an accrued benefits claim. (REMAND NEXT PAGE)   REASONS FOR REMAND Service Connection for the Veteran’s Cause of Death In August 2012, the Veteran complained of a history of diabetes, hypertension, and a 3-week history of passing dark urine and experiencing jaundice. An inpatient workup revealed a mass on the pancreatic head. The Veteran underwent a pancreaticoduodenectomy (Whipple resection) and partial pancreatectomy in treatment of a pancreatic ductal adenocarcinoma. Clinicians treating the Veteran’s pancreatic cancer also noted, for example in July 2013, his constant, “persistent pattern” of diabetes symptoms. The Veteran received continuing treatment for both pancreatic cancer and diabetes until his death on March 11, 2018. His death certificate lists metastatic adenocarcinoma of the pancreas as the immediate cause of death with an approximate interval of 6 years between the onset of the disease and his death. At the time of his death, he was in receipt of a combined 100 percent rating for a variety of disabilities, including, in pertinent part, diabetes mellitus, type II (20 percent) with peripheral neuropathy (30 percent for the right upper extremity, 20 percent for the left upper extremity, and 20 percent for each of the lower extremities). Given that the Veteran was service connected for diabetes, a disease process involving the pancreas, and he died as the result of a pancreatic cancer, the Board finds that an opinion addressing the Veteran’s cause of death is necessary. On remand, the Agency of Original Jurisdiction (AOJ) should obtain an opinion from a specialist addressing whether the Veteran’s military service resulted in his cause of death or whether his service-connected disabilities, to include diabetes, were a principal or contributory cause of the Veteran’s death. Non-Service-Connected Death Pension Benefits The appellant has not yet provided sufficient evidence of income and medical expenses to determine her eligibility for non-service-connected death pension benefits. On remand, the AOJ should again inform the appellant of the requirements for establishing eligibility for non-service-connected death pension benefits and afford her the opportunity to provide the necessary information. This matter is REMANDED for the following actions: 1. Inform the appellant of the evidentiary requirements for establishing eligibility for non-service-connected death pension benefits and afford her the opportunity to provide VA with the necessary information. 2. Following review of the claims file, a specialist in the medical field of endocrinology or oncology should offer the following opinions regarding the Veteran’s cause of death: (a.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the metastatic adenocarcinoma of the pancreas that caused the Veteran’s death had its onset during his active military service? (b.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran’s service connected disabilities (most notably his diabetes mellitus) either individually or in combination, were a principal or contributory cause of the Veteran’s death from metastatic adenocarcinoma of the pancreas? A contributory cause of death includes a disability that contributed substantially or materially to death, or combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that such disability casually shared in producing death, but rather it must be shown that there was a causal connection. A contributory cause of death may also include the debilitating effects of disease and general impairment of health that rendered the Veteran materially less capable of resisting the effects of the diseases primarily causing death, or disease of a progressive or debilitating nature, such that it had a material influence in accelerating death. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.