Citation Nr: 20057043 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 18-55 201A DATE: August 28, 2020 ORDER Compensation under 38 U.S.C. § 1318 is denied. REMANDED Service connection for the cause of the Veteran's death is remanded. FINDING OF FACT The evidence fails to show that the Veteran was a prisoner of war and/or was continuously rated totally disabled for 10 years preceding his death or died within five years of his discharge from service. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 7105; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from June 1943 to June 1945. He died in April 2018, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision. The appellant testified before the undersigned Veterans Law Judge at a Board hearing in March 2020. Compensation under 38 U.S.C. § 1318 VA pays dependency and indemnity (DIC) benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling 1) if the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; 2) if the disability was rated by the VA as totally disabling continuously since the Veteran’ s release 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, 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). With the above criteria in mind, the facts of this case are not in dispute and show that the Veteran separated from active duty in June 1945 and died in April 2018. The record also shows that at the time of his death, the Veteran was in receipt of a total disability rating based on individual unemployability (TDIU) effective from November 24, 2008. Unfortunately, he passed away less than 10 years later. The appellant does not claim, and the record does not show that the Veteran had ever been a prisoner of war. Likewise, the appellant does not claim, and the record does not show, that but for clear and unmistakable error in an earlier rating decision the Veteran would have met one of the 38 U.S.C. § 1318 criteria for DIC. Based on the evidence of record, the Board find that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met because the evidence fails to show the above criteria have been met. The Board acknowledges the Veteran’s honorable military service and is sympathetic to the loss his family has endured. Unfortunately, the payment of benefits under 38 U.S.C. § 1318 is based on specific guidelines which have not been met in this case. The Board is bound by the law and is without authority to grant benefits based on equity. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, this claim must be denied. REASONS FOR REMAND Service connection for the cause of the Veteran's death The appellant contends that the Veteran’s service-connected bilateral trench foot caused or contributed to his death. To date, no VA examiner has opined on the relationship, if any, between his service-connected bilateral trench foot and the causes of death listed on his death certificate (dementia, hypertension, congestive heart failure, and diabetes mellitus). The Board acknowledges the June 2018 and April 2020 opinions from Dr. D.E.M. in which he stated that pain from the Veteran’s service-connected trench feet, and the certainty that nothing could be done to help it, made it difficult to contend with age-related medical issues and worsening congestive heart failure. However, this opinion is not sufficient to establish service connection for the cause of the Veteran’s death. 38 C.F.R. § 3.312(c)(1) (it is not sufficient to show that a disability casually shared in producing death, but rather it must be shown that there was a causal connection). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether any of the Veteran’s causes of death listed on his death certificate (dementia, hypertension, congestive heart failure, and diabetes mellitus) are at least as likely as not (1) proximately due to service-connected bilateral trench feet (cold injury residuals), or (2) aggravated beyond their natural progression by service-connected bilateral trench feet (cold injury residuals). The claims file should be made available to the clinician for review. The rationale for any opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.