Citation Nr: 21064466 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 19-32 660 DATE: October 20, 2021 ORDER Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. REMANDED The claim for service connection for cause of death is remanded. FINDING OF FACT At the time of his death, the Veteran had not been rated as totally disabling for a continuous period of at least 10 years immediately preceding death; he had not been rated totally disabling continuously since his release from active duty (1976) for a period of not less than five years immediately preceding death; and the records do not show that the Veteran was a prisoner of war. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1955 to February 1976. He died in July 2018. The Appellant, the surviving spouse, filed claims for DIC and service connection for cause of death. Entitlement to DIC under 38 U.S.C. § 1318 38 U.S.C. § 1318 provides that DIC will be awarded 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, and 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 POW who died after September 30, 1999. Here, evidence shows that at the time of his death, the Veteran was rated 100 percent for diabetic macular edema effective March 2017, 20 percent for type II diabetes, 30 percent for PTSD, and 10 percent for nasal septum obstruction, with combined rating of 100 percent from March 2017, which is less than two years from the date of his death. There is no suggestion that he was a POW. As such, the Appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. REASONS FOR REMAND Service connection for cause of death To establish service connection for cause of death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of a veteran's death should have been service connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability occurred during or was otherwise caused by service. 38 C.F.R. §§ 3.303, 3.304. The Veteran's death certificate shows that his cause of death was arrhythmia with significant contributing conditions of congestive heart failure and renal insufficiency. In a September 2019 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) has confirmed that the Veteran served in Vietnam and he was presumptively exposed to herbicide agents during his service. Service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). If a veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders listed under 38 C.F.R. § 3.309(e). Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) is a disease listed under 38 C.F.R. § 3.309(e). The Veteran's death certificate shows that his cause of death was arrhythmia with significant contributing condition of congestive heart failure. It is not clear whether the Veteran's arrhythmia or congestive heart failure can be characterized as ischemic heart disease listed under 38 C.F.R. § 3.309(e). In addition, the death certificate also show that renal insufficiency is a significant contributing cause of death, and the Veteran was service connected for type II diabetes. It is not clear whether the Veteran's diabetes had caused or aggravated the Veteran's renal insufficiency, and if so whether that should be considered a contributory cause of the Veteran's death. The matters are REMANDED for the following action: Obtain a medical opinion to address the Veteran's cause of death. The examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or more probability) that either the Veteran's arrhythmia and/or his congestive heart failure should be characterized as ischemic heart disease (defined as including (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)? Why or why not? (b) Is it at least as likely as not (50 percent or more probability) that the Veteran had ischemic heart disease which caused his arrhythmia and/or congestive heart failure? Why or why not? (Continued on the next page) (c) Is it at least as likely as not (50 percent or more probability) that the Veteran's service connected type II diabetes caused or aggravated (made worse) his renal insufficiency? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.