Citation Nr: 21064628 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-35 148 DATE: October 21, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. FINDING OF FACT 1. The Veteran was not evaluated totally disabled for a service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). 2. The Veteran was not entitled to receive total service-connected disability compensation by way of any of the possible exceptions listed under 38 C.F.R. § 3.22 (b). 3. Service connection for the cause of death has been granted by the Agency of Original Jurisdiction. CONCLUSION OF LAW The criteria for Entitlement to Dependency and Indemnity Compensation (DIC) under 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 from March 1964 to January 1967. He died in February 2016, and the Appellant claims as the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death and entitlement to dependency and indemnity (DIC) benefits pursuant to 38 U.S.C. § 1318. In December 2020, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. At the hearing, the VLJ clarified the issues on appeal, elicited relevant testimony from the Appellant, identified potential evidentiary defects, and held the file open for 90 days to allow the submission of additional evidence. These actions complied with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. In an April 2021 decision the Board remanded the matters to obtain a medical opinion as to whether the Veteran's service-connected coronary artery disease and/or prostate cancer contributed substantially and materially to his death or, alternatively, whether the Veteran's service-connected coronary artery disease and/or prostate cancer contributed to the development of a hematoma which contributed substantially and materially to his death. The requested opinion was obtained in June 2021. In July 2021 the RO issued a Supplemental Statement of the Case denying entitlement to DIC benefits pursuant to 38 U.S.C. § 1318. The Appellant waived her right to submit additional evidence for consideration by the RO, and the DIC claim was recertified to the Board for further appellate consideration. In August 2021 the RO issued a rating decision granting service connection for the cause of the Veteran's death. This represented a full grant of the benefit originally sought on appeal, and entitlement to service connection for the cause of the Veteran's death is no longer before the Board. Recently, the Court addressed the concept of jurisdiction. In light of that decision, the Board shall address the merits of this very limited legal issue. 1. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran's death were service connected where it is shown that the Veteran's death was not the result of willful misconduct, and the veteran (1) was 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 five but less than ten years after separation from service; or (3) the veteran was a former prisoner of war (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. See 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The term "entitled to receive" means that, at the time of death, a veteran had filed a claim for disability compensation during his lifetime, and the veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174 (h)(2); (5) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22 (b)(3). In addition, the term "entitled to receive" can mean that a veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the veteran's lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156 (c) and 3.400 (q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section. See 38 C.F.R. § 3.22 (b)(1), (b)(2). Claims for DIC benefits under 38 U.S.C. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of "hypothetical entitlement" to benefits raised for the first time after a veteran's death. See Rodriguez v. Nicholson, 511 F.3d 1147 (Fed. Cir. 2008) (the revised provisions of 38 C.F.R. § 3.22, as amended in 2000, may be applied to claims for DIC benefits filed by survivors before the amendment took effect). At the time of the Veteran's death in February 2016, he was service connected for coronary artery disease rated 10 percent disabling since January 23, 2012; prostate cancer rated 100 percent disabling from March 17, 2015 to May 1, 2016, and 10 percent disabling thereafter; and erectile dysfunction rated 0 percent disabling from November 10, 2015. We note the Veteran was also in receipt of special monthly compensation under 38 U.S.C. § 1114 (k)(1) for loss of use of a creative organ, also effective November 10, 2015. Here, the Veteran was not rated by VA as being totally disabled for a continuous period of at least 10 years immediately preceding death. He was not rated by VA as being totally disabled upon separation from service in January 1967. The record does not establish that he was a prisoner of war. The Board notes that the Appellant has not argued that (1) but for CUE committed by VA in a decision during the Veteran's lifetime, the Veteran would have received totally disability compensation for the requisite 10 years; or (2) new and material evidence consisting of service department records that existed at the time of a prior VA decision but that were not previously considered by VA provides a basis for reopening a final claim and awarding a total disability rating retroactively for the requisite period of time; or (3) but for the receipt of VA or military retirement pay, the Veteran would have been entitled to total disability compensation for the requisite period of time. In sum, the facts of this case are not in dispute, and the law is dispositive. None of the criteria for entitlement to DIC under 38 U.S.C. § 1318 and 38 C.F.R. § 3.22 have been met. Furthermore, service connection for the cause of the Veteran's death has already been granted. Accordingly, the claim will be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this determination, the Board has considered the 1994 decision of Mintz (K) citation omitted, wherein the Board noted that there was no actual or potential benefit and jurisdiction was declined. The Court noted that there was no jurisdiction to decline. Considering a recent Court decision, we address on the merits rather than a jurisdictional issue. Here, there is no actual or potential benefit since service connection for the cause of death was granted (which is potentially a greater benefit than 1318.) The issue is denied because there is no actual or potential benefit. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.