Citation Nr: 21010851 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-51 793 DATE: February 25, 2021 ORDER Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. REMANDED Service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran passed away in October 2013. At the time of his death, the Veteran had been continuously rated as totally disabled from his service-connected disabilities from August 30, 2010. Thus, the Veteran was only continuously rated totally disabled for a period of a little more than three years prior to his death. The Veteran was not a former prisoner of war, and did not die within five years of separation from service. CONCLUSION OF LAW 1. The criteria for DIC benefits 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 in the U.S. Marine Corps from September 1949 to December 1952. He passed away in October 2013. The appellant is his surviving spouse. The matter is on appeal before the Board from a May 2014 rating decision. The appellant provided testimony at a Board hearing in January 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. DIC benefits under 38 U.S.C. § 1318 DIC benefits may be granted under 38 U.S.C. § 1318 when the Veteran’s death was not a result of willful misconduct, and if at the time of death the Veteran was receiving or was entitled to receive compensation for a service-connected disability that was (1) continuously rated totally disabling for a period of ten or more years immediately preceding death; or (2) continuously rated totally disabling for a period of not less than five years from the date of the Veteran’s separation from active duty; or (3) continuously rated totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war. 38 U.S.C. § 1318, 38 C.F.R. § 3.22(a). Under 38 U.S.C. § 1318 “entitled to receive” includes a situation in which the Veteran would have received total disability compensation at the time of death but for a clear and unmistakable error in a decision on a claim filed during the Veteran’s lifetime. 38 C.F.R. § § 3.22(b)(1). The evidence of record reflects that the Veteran last served on active duty in December 1952. At the time of the Veteran’s death, he was service-connected for peripheral vascular disease of the right lower extremity with an evaluation of 40 percent; peripheral vascular disease of the left lower extremity with an evaluation of 20 percent; residuals of cold injury to the right foot with an evaluation of 30 percent; residuals of cold injury to the left foot with an evaluation of 30 percent; residuals of cold injury to the right hand with an evaluation of 30 percent; residuals of cold injury to the left hand with an evaluation of 30 percent; peripheral neuropathy of the right lower extremity with an evaluation of 10 percent; peripheral neuropathy of the left lower extremity with an evaluation of 10 percent; peripheral neuropathy of the right upper extremity with an evaluation of 10 percent; peripheral neuropathy of the left upper extremity with an evaluation of 10 percent; tinnitus with an evaluation of 10 percent; and bilateral hearing loss with a noncompensable evaluation. As such, the Veteran was continuously rated as totally disabled in relation to his service-connected disabilities from August 30, 2010 through his death in October 2013. Therefore, the Veteran was only continuously rated totally disabled for a period of a little more than three years prior to his death. Clear and unmistakable error has not been found nor alleged regarding any prior VA rating decision. As such, the Veteran was not continuously rated totally disabled for a period of at least ten years prior to death, nor was he continuously rated totally disabled for a period of at least five years from his date of discharge from active military service. The evidence of record does not show the Veteran to have been a former prisoner of war, nor has there been any allegations of such. Accordingly, the claim for DIC benefits under 38 U.S.C. § 1318 is denied as a matter of law. REASONS FOR REMAND Service Connection Cause of Death The Board notes that the questions of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, this presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. At the January 2021 Board hearing, the appellant’s representative specifically challenged the competency of the VA examiner that provided a VA medical opinion in August 2016 pertaining to the Veteran’s cause of death. That is, the representative questioned the type of physician that was rendering the opinion. Was the physician a pediatrician, a cardiologist, a neurologist, or some other type of physician? The Board notes that the same examiner also rendered the VA medical opinion in May 2014. The representative’s challenge meets the Francway criteria, as it is more than just general assertions of inadequacy. Thus, the challenge is sufficient to shift the burden of persuasion to VA to establish the examiner’s qualifications by providing information about those qualifications to the appellant and her representative. In addition, the information to be provided is also necessary to allow the Board to make the required factual finding pertaining to the VA examiner’s competency. As such, a remand is warranted to obtain the qualifications of the VA examiner. The matters are REMANDED for the following action: 1. Obtain copies of the curriculum vitae and any other credentialing documents for the VA examiner who provided a VA medical opinion pertaining to the Veteran’s cause of death in August 2016. Upon receipt of the documents associate them with the Veteran’s file, and provide a copy to the appellant and her representative. If the requested documents are unattainable, then the appellant and her representative should be notified, and it should be documented in the Veteran’s record. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.