Citation Nr: 21074726 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-31 278 DATE: December 16, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits based on a claim for service connection for the cause of the Veterans death is denied. FINDING OF FACT There is no probative evidence establishing that a service-connected disability was the principal or contributory cause of death. CONCLUSION OF LAW The criteria for entitlement to dependency and indemnity compensation (DIC) benefits have not been met. 38 U.S.C. § 1310, 1318, 1151. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to April 1970. He died in September 2005. The Appellant is the adoptive mother of the Veteran's biological son, a minor child at the time of the claim, and seeks benefits on his behalf. The Board notes that the biological son, is now an adult. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing before the undersigned Veterans Law Judge in December 2017. A transcript of that hearing is associated with the claims file. In March 2018, the Board remanded the issues on appeal for additional development. In April 2021, the Board remanded this matter for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Appellant has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald,814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Appellant should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober,14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to dependency and indemnity compensation (DIC) benefits The Appellant contends that the Veteran's death was due to active service. Specifically, the Appellant asserts that the Veteran's cause of death was related to the Veteran's HIV condition. The October 1995 rating decision indicates that the Veteran was granted nonservice-connected pension based on nonservice-connected HIV, rated at 30 percent; pneumonia, left lower lobe infiltrate, rated at 30 percent; congenital deformity, 5th toe, rated at 0 percent; and depression, rated at 0 percent. DIC benefits are monetary benefits that may be paid to a deceased Veteran's surviving spouse, child, or parent. 38 U.S.C. § 101(14). As the surviving spouse of the Veteran, the Appellant may qualify for DIC benefits if the criteria described below are met. There are three main theories of entitlement to DIC benefits: (1) benefits awarded pursuant to 38 U.S.C. § 1310; (2) benefits awarded pursuant to 38 U.S.C. § 1318; and, (3) benefits awarded pursuant to 38 U.S.C. § 1151. Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152(a), (b)(1). As such, a generic claim for DIC benefits encompasses all three theories of entitlement listed above. See, e.g., Stoner v. Brown, 5 Vet. App. 488, 491 (1993). To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For the disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, resolution of this appeal hinges on two questions: (i) did a service-connected disability cause the Veteran's death; or, (ii) were the causes of his death entitled to service connection? As to the first inquiry, the evidence does not show that the cause of the Veteran's death was related to service or a service-connected disability. Initially, the Board notes that service connection was not granted for any disability during the Veteran's lifetime. In addition, the Board finds that there is no evidence in the file showing that his cause of death was related in any way to service. The Board notes that there is no death certificate associated with the claims file. As mentioned in the April 2021 remand, the RO attempted to obtain a death certificate on the Appellant's behalf, but a fee was required with the application. VA cannot provide payment to obtain the records, and thus the Appellant must secure these records. The Board acknowledges that the Appellant has had difficulty obtaining the Veteran's death certificate. However, the Appellant's adoptive son is no longer a minor and could have requested the records independently. The Board notes that in her testimony the appellant stated that she belived that the Veteran had died from an HIV infection and that this had occurred due to service. She stated that the Veteran had told her that the infection started in service, but she did not know any details of exactly how. The Veteran's service treatment records do not contain any evidence of any significant disease or injury other than chronic foot problems. The veteran denied having any disease or injuries on a separation medical history. The report of a medical examination conducted at that time shows no abnormalities. The Veteran's DD 214 shows that he did not have any foreign service, and thus was not in any area such as Vietnam where he would have been exposed to herbicides. In July and August 2021, the Appellant was sent a development letter requesting that the Appellant's adoptive son is no longer a minor and may request the death certificate of the Veteran independently. However, neither the Appellant or adoptive son have submitted a copy of the death certificate. Accordingly, service connection for the cause of the Veteran's death cannot be established on this basis. As to the second inquiry, service connection may be awarded for the causes of the Veteran's death upon the following: (1) Competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). However, without a death certificate, even if there were other disabilities that the Veteran may have been able to receive service connection for, without the death certificate there is no evidence that he died of a disability that was related to service. For the reasons discussed above, DIC benefits are not warranted under 38 U.S.C. § 1310 as there is no evidence the Veteran died of a service-connected disability or that he died of a disability to which he was entitled to service connection, and there is no contention that the Veteran's death was due to VA hospitalization or treatment for the purposes of entitlement under 38 U.S.C. § 1151. The only remaining theory, then is under § 1318. Entitlement under 38 U.S.C. § 1318 allows for the award of DIC for nonservice-connected deaths of Veterans rated as totally disabled. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). Under 38 U.S.C. § 1318, VA death benefits may be paid to the surviving spouse and to the children of a deceased Veteran in the same manner as if the Veteran's death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, 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. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318; see Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The Veteran did not meet any of these requirements. At the time of the Veteran's death, the evidence does not show that the Veteran was entitled to service connection for any disability, nor was it shown he was entitled to a total disability rating within the language of 38 C.F.R. § 1151. The Veteran was not a former POW or did not meet any of the other requirement under 38 U.S.C. § 1318. Accordingly, the criteria for establishing DIC under all theories of entitlement have not been met, and the DIC claim is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.