Citation Nr: 21004061 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-34 600 DATE: January 25, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to accrued benefits, including entitlement to the Veteran's nonservice- connected pension benefits for accrued purposes, is remanded. Entitlement to service connection for the Veteran's cause of death is remanded. FINDING OF FACT The Veteran did not have any service-connected disabilities at the time of his death, was not a prisoner of war (POW), and was not in receipt of or entitled to receive compensation at the 100 percent rate due to a service-connected disability or disabilities for a period of a least five years immediately after his discharge from active service or for 10 continuous years prior to his death. CONCLUSION OF LAW The criteria for 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 Navy from July 1952 to September 1955. The Veteran died in August 2017. The appellant in this matter is the Veteran’s widow. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 Department of Veterans Affairs (VA) decision, which notified the appellant that her claim for DIC and accrued benefits were denied. In May 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). Thereafter, she was notified that the Board was unable to produce a complete transcript of the May 2020 Board hearing and, as such, had the opportunity to testify at another Board hearing. See November 2020 correspondence. In December 2020 correspondence, the appellant indicated that she did not wish to appear at another hearing and requested that her case be considered based upon the evidence of record. The Board notes that in November 2018, the appellant returned a signed notice opting to have her claims adjudicated under the Rapid Appeals Modernization Program (RAMP). At the time of the Veteran’s RAMP opt-in form, she did not have qualifying claims that were eligible for the RAMP program. In December 2018, VA also notified the appellant that her claims were not eligible for processing under the RAMP program. See December 2018 Notification Letter. Therefore, the appeal remains before the Board. Entitlement to DIC under 38 U.S.C. § 1318 Although the Board is remanding the claims pertaining to accrued benefits and service connection for cause of death, the Board finds no prejudice to the appellant at the present time in proceeding with adjudication of her DIC claim under 38 U.S.C. § 1318. In this regard, the Board notes that regardless of the outcome of the remanded matters, the requirements for an award of DIC under 38 U.S.C. § 1318 would still not be met due to the timing of the Veteran’s separation from service, subsequent death, and the fact that he was not a POW. Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service-connected, if the veteran died not as the result of his own willful misconduct and the veteran was, at the time of his death, either in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former POW 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; 38 C.F.R. § 3.22. Claims under 38 U.S.C. § 1318 are adjudicated based on decisions rendered during the veteran's lifetime. 38 C.F.R. § 20.1106. In the instant case, entitlement to DIC benefits is not warranted under 38 U.S.C. § 1318. The Veteran was not a POW, and the appellant has not suggested otherwise. At the time of the Veterans death, in August 2017, he was not in receipt of VA disability compensation for any service-connected disability nor was he entitled to receive compensation at the rate of 100 percent (total rating) due to a service-connected disability or disabilities for a period of ten or more years immediately preceding his death. Thus, the durational requirements for a total disability rating under 38 U.S.C. § 1318 cannot be met. As the durational requirements have not been met, nor has the record shown that the Veteran was a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 must be denied as a matter of law. REASONS FOR REMAND 1. Entitlement to accrued benefits, including entitlement to the Veteran's nonservice- connected pension benefits for accrued purposes The Board finds that further development is necessary prior to adjudication of this issue. In this regard, in a July 2017 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for dementia (also claimed as Alzheimer’s disease and metabolic encephalopathy), service connection for muscle atrophy in the lower extremities (claimed as difficulty walking), and entitlement to special monthly compensation based on aid and attendance/housebound. The Veteran died prior to the appeal period ending. Thus, these claims remained pending at the time of the Veteran's death. Taylor v. Nicholson, 21 Vet. App. 126 (2007) (holding that while a veteran did not file a notice of disagreement prior to death, a claim was still pending as the time period to appeal a rating decision had not expired); 38 C.F.R. § 3.1010(g)(1) (2017). In September 2017, the appellant filed a timely VA Form 21-534, Application for DIC, Death Pension, and/or Accrued Benefits, indicating that she was claiming accrued benefits. The Board notes that this claims form is considered to include a request to substitute for claims pending before VA at the time of the Veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(c)(2) (holding that, in lieu of a specific request to substitute, a claim for accrued benefits, survivor's pension, or DIC is deemed to include a request to substitute if a claim for monetary benefits was pending when the claimant died). Additionally, in October 2017, VA received the appellant’s VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. In a November 2017 decision, the AOJ explained its decision that no accrued benefits were payable to the appellant based on when the Veteran’s VA pension claim was received. However, the AOJ did not address the Veteran’s pending compensation claims, discussed above. See 38 C.F.R. § 3.160(c) (defining "pending claim" as an application that has not been finally adjudicated); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998); Zevalkink v. Brown, 6 Vet. App. 483 (1994), aff'd 102 F.3d 1236 (Fed. Cir. 1996). Instead, it appears that the AOJ processed the claim at issue, at least nominally, as an accrued benefits claim for the Veteran’s pension benefits without also addressing the pending claims or the appellant’s substitution request. Indeed, the claims file does not reflect that the AOJ has made any substitution determination or informed the appellant about her rights to pursue the service connection and special monthly compensation claims pending at the time of the Veteran’s death as either a substitute claimant or as a claimant for accrued benefits. The request to substitute must be decided by the AOJ. See 38 C.F.R. § 3.1010(e) (AOJ must decide in first instance all requests to substitute); Reliford v. McDonald, 27 Vet. App. 297 (2015) (declining to find harmless error where the appellant was not provided the opportunity to waive substitution). In this case, the Board finds that the appellant must be specifically notified about her rights to pursue the above-referenced service connection and compensation claims as either a substitute or an accrued benefits claimant and that the AOJ should consider whether the appellant should be substituted based on the above information. The Board finds that this action must be completed prior to any further action concerning entitlement to accrued benefits for the Veteran’s pension benefits. 2. Entitlement to service connection for the Veteran's cause of death The appellant contends that service connection is warranted for the Veteran’s cause of death. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Notably, this analysis also includes ascertaining whether service connection is warranted posthumously. As noted above, the Veteran died in August 2017. His death certificate lists that his cause of death was acute toxic metabolic encephalopathy with failure to thrive and also lists dementia as a significant condition contributing to death but not resulting in the underlying cause. The Veteran was not service connected for these conditions during his lifetime. The appellant contends, however, that the Veteran’s acute toxic metabolic encephalopathy and/or dementia, resulting in/contributing to his death, was the result of exposure to paint and cleaning solvents during the Veteran’s service. In support of this assertion, she cited to a VA public health webpage noting that many service members used industrial solvents in regular military tasks such as cleaning, degreasing, paint stripping, and thinning oil-based paints and that too much exposure to some industrial solvents can cause short-term and long-term health effects. See May 2017 Correspondence. In June 2020 correspondence, she additionally referenced and cited to several medical and scientific articles, including an article noting that exposure to solvents such as Benzene and Toluene have been shown to correlate with an increased risk of Alzheimer’s disease as well as an article noting that Benzene may be found in cleaning products and paint strippers. The Board notes that the AOJ conceded that the Veteran was exposed to cleaning products during service but found there was no evidence that the Veteran was exposed to paint or solvents while serving as a Steward apprentice and Stewardsman in the Navy. See June 2018 Statement of the Case. However, the evidence of record also reflects that the Veteran reported that he was exposed to solvents, such as paint stripping and cleaning, including oil-based paints while he was in service. See May 2017 correspondence. Additionally, the appellant has asserted that the Veteran was exposed to paints and solvents, to include as a graphic illustrator when he worked for the Navy after his discharge from active duty service. See January 2018 Report of General Information and June 2020 Correspondence. Moreover, in August 2020, VA received an opinion from a private physician who found that the Veteran’s dementia was at least as likely as not related to the Veteran’s military service. The private physician noted that the Veteran’s exposure to numerous chemicals during service, while not causative, would increase the Veteran’s risk of dementia. Based on the above, the Board finds that a remand is warranted in order to further develop the claim prior to adjudication. First, the Board finds, based on the appellant’s assertions, the private medical opinion noting exposure to numerous chemicals, and the scientific/medical website articles addressing industrial solvents in the record, that a remand is warranted to obtain a medical opinion to determine whether the Veteran’s cause of death is related to his active service, to include any potential exposure to industrial solvents. To date, the record does not contain a VA opinion concerning the Veteran’s cause of death while the August 2020 private medical opinion does not explain why chemical exposure would increase the Veteran’s risk of dementia. Therefore, a medical opinion is warranted to clarify whether service connection is warranted for the Veteran’s cause of death. Second, on remand, the appellant should be asked to clarify whether she is claiming that the Veteran was engaged in activities that involved paint stripping and oil base paints during his period of active duty service, from July 1952 to September 1955, when the Veteran was serving as a Stewardsman. The Board acknowledges the appellant’s contention that the Veteran used paint solvents after his discharge from active service, but finds clarification is warranted regarding whether she is claiming he was exposed to these solvents during his active service. The matters are REMANDED for the following action: 1. Determine whether the appellant is eligible to substitute for the Veteran with regard to his claims for service connection for dementia (also claimed as Alzheimer’s disease and metabolic encephalopathy), service connection for muscle atrophy in the lower extremities (claimed as difficulty walking), and entitlement to special monthly compensation based on aid and attendance/housebound pending at the time of his death from the July 2017 rating decision. Notify the appellant of her rights relating to substitution. 2. Ask the appellant to clarify/provide any further information concerning the Veteran’s duties during his active period of service, to include whether she is claiming that the Veteran was engaged in activities that involved paint stripping and oil base paints during his period of active duty service, from July 1952 to September 1955, when the Veteran was serving as a Stewardsman. 3. Then, arrange for a VA medical opinion with an appropriate medical professional to determine whether the Veteran’s cause of death was related to his service. The claims file, including a copy of this Remand, should be made available to and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s acute toxic metabolic encephalopathy had its onset in service, was incurred in service, or was otherwise related to the Veteran’s active service, to include any potential exposure to cleaning products/industrial solvents? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s dementia had its onset in service, was incurred in service, or was otherwise related to service, to include any potential exposure to cleaning products/industrial solvents, and in turn whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s dementia caused or contributed substantially or materially to his death? For the limited purpose of this opinion only, the examiner should assume the Veteran was exposed to industrial solvents during active service as described above and as asserted throughout the record. In rendering the above opinions, the examiner must consider and address as appropriate (1) the private medical opinion, received by VA in August 2020, finding that the Veteran’s dementia was related to the Veteran’s military service because the Veteran’s exposure to numerous chemicals during service, while not causative, would increase the Veteran’s risk of dementia; and (2) the website articles the appellant submitted in June 2020 Correspondence concerning various solvents, including an article noting that exposure to solvents such as Benzene and Toluene have been shown to correlate with an increased risk of Alzheimer’s disease and an article noting that Benzene may be found in cleaning products and paint strippers. The examiner must provide a clear explanation for all provided opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resort to speculation, the examiner must explain why such an opinion would be speculative. 4. After the above-referenced substitution determination, and any additionally indicated development has been completed, readjudicate the service connection and special monthly compensation issues on appeal on either an accrued benefits basis or on the basis of substitution (based on the determination made above, together with the appellant’s election), as well as the inextricably intertwined issues of entitlement to accrued benefits for the Veteran’s pension benefits and entitlement to service   connection for the cause of the Veteran’s death. If any benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.