Citation Nr: 21008810 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-35 639 DATE: February 18, 2021 ORDER Entitlement to dependency and indemnity compensation benefits under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT 1. The Veteran was in receipt of a combined 100 percent schedular rating from June 27, 2006, to the time of his death in January 2015. 2. The Veteran was not continuously rated as totally disabled for a period of at least 10 years prior to his death. CONCLUSION OF LAW The criteria for dependency and indemnity compensation are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of honorable service in the U.S. Army from April 1964 until April 1967. The Veteran died in January 2015. The appellant is the surviving spouse. The case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In December 2020 the appellant presented hearing testimony before the undersigned Veterans Law Judge. 1. Entitlement to dependency and indemnity compensation benefits under 38 U.S.C. § 1318 is denied. A surviving spouse may be entitled to dependency and indemnity compensation in the same manner as if the Veteran's death were service connected, under certain specific conditions. VA shall pay dependency and indemnity compensation to the surviving spouse of a Veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling provided, in pertinent part, that the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b)(1); 38 C.F.R. § 3.22. At the time of the Veteran's death, service connection was in effect for prostate cancer and erectile dysfunction. The prostate cancer was evaluated at 20 percent from September 02, 2004, at 40 percent from April 20, 2005, and at 100 percent from June 27, 2006. Erectile dysfunction was evaluated at zero percent from September 2, 2004. Thus, the Veteran was in receipt of a total rating from June 27, 2006. Thus, a total disability rating was in effect from June 27, 2006 to the time of the Veteran's death in January 2015, a period of less than 10 years. As such, the evidence shows that the Veteran was not continuously rated totally disabled for a period of at least 10 years prior to his death. The Board further notes that the Veteran was neither rated totally disabled for a period of not less than 5 years from the date of his discharge from active duty in October 1977, nor was he a prisoner of war with a total disability rating for a period of not less than one year immediately preceding death. Thus, DIC benefits are not warranted under other potentially applicable provisions. 38 U.S.C. § 1318(b)(2), (3). The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. Accordingly, entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318 is denied. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. Remand is required to obtain opinions regarding all relevant theories of entitlement. The appellant seeks service connection for the cause of the Veteran's death. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310(a) (2012); 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The Veteran's certificate of death shows that he died in January 2015 and showed the cause of death as a cerebrovascular accident. The Veteran was service-connected for prostate cancer and erectile dysfunction. The appellant claimed in the December 2020 hearing that the Veteran suffered from medical conditions, such as a heart disorder and hypertension, associated with exposure to Agent Orange while serving in Vietnam and that these conditions contributed to the cause of his death. December 2006 VA records noted the Veteran’s history of high blood pressure and heart disease. VA medical treatment records from July 2009 noted that the Veteran had a medical history of hypertension and heart murmur. October 2014 VA treatment records also indicated that the Veteran was taking medication to treat his hypertension. In a recent update, hypertension has been moved from the “limited or suggestive” category to the category of “sufficient” evidence of an association. Veterans and Agent Orange: Update 11 (2018). Exposure to Agent Orange can be presumed to have occurred only if it can be shown that the Veteran was in Vietnam or offshore during the Vietnam Era between January 9, 1962 and May 7, 1975. The Veteran's DD-214 shows he served in Vietnam during that time period, and therefore exposure to Agent Orange is conceded. The appellant also stated in the December 2020 hearing that she believed the Veteran’s prostate cancer, erectile dysfunction, and several other health problems caused him great stress which ultimately contributed to his cardiovascular accident. In a June 2007 VA treatment record, the examiner noted that the recurrence of the Veteran’s prostate cancer affected him psychologically. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the cause of the Veteran’s death from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension is due to in-service Agent Orange exposure, addressing the most recent Update. If so, did the Veteran’s hypertension contribute substantially or materially to death, or aid or lent assistance to the production of death? Second, is there a diagnosis of ischemic heart disease? If so, then did that disease contribute substantially or materially to death, or aided or lent assistance to the production of death. Third, did the stress associated with dealing with prostate cancer and erectile dysfunction cause resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. The examiner is advised that the Veteran was, and the appellant and any other lay witnesses are, competent to report symptoms and treatment, and that these reports must be taken into account in formulating the requested opinion. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.