Citation Nr: 21013445 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-02 748 DATE: March 9, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran died in August 2013, and he was not in receipt of compensation for a service-connected disability prior to his death. CONCLUSION OF LAW The criteria for DIC benefits pursuant to 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 August 1963 to August 1966. He died in August 2013; the appellant is his widow. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2013 rating decision and a November 2014 statement of the case issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested a Travel Board Hearing. The hearing was initially scheduled for May 2018, and later rescheduled for June 2018 as a Video Conference Hearing. However, the appellant did not attend the scheduled hearing. She has not asked for it to be rescheduled. In light of the forgoing, the hearing request is considered withdrawn. See 38 U.S.C. § 7107; 38 C.F.R. § 20.704(d). The issue of entitlement to service connection for the cause of the Veteran’s death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 DIC under 38 U.S.C. § 1318 is payable to the surviving spouse of a deceased Veteran if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was (1) rated totally disabling for a continuous period of 10 or more years immediately preceding death; (2) rated as totally disabling continuously since the Veteran’s release from active duty and for at least 5 years immediately preceding death; or (3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. In this case, no service-connected disability was established prior to the Veteran’s death. Thus, the legal criteria for DIC under 38 U.S.C. § 1318 are not met, and the appellant’s claim for this benefit must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In light of the foregoing, entitlement to DIC under 38 U.S.C. § 1318 is not warranted. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Where the law is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board is sympathetic to the appellant’s claim; however, the Board is without authority to grant the claim on an equitable basis and is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded While the Board regrets the delay, the appellant’s claim of entitlement to DIC must be remanded for additional delay. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant asserts that the conditions that caused the Veteran’s death are due to exposure to Agent Orange during military service. A review of the Veteran’s death certificate reveals that the immediate cause of death was cardiopulmonary arrest, acute on chronic ventilator, respiratory failure with pulmonary fibrosis. The conditions of encephalopathy and meningitis were listed as significant conditions that contributed to his death. The duty to assist extends to obtaining an adequate VA examination. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In November 2014, the Veteran was afforded a VA cause of death examination. However, the opinion by the examiner only addressed whether the Veteran’s type 2 diabetes mellitus contributed to the Veteran’s pulmonary fibrosis. The examiner failed to address whether the conditions documented on the death certificate as having caused the Veteran’s death or contributed to it were related to the Veteran’s military service due to Agent Orange. The examiner simply stated that “there is no Agent Orange related condition listed on the death certificate.” However, that statement appears to only consider the listed conditions related to Agent Orange that qualify for the presumption under 38 C.F.R. § 3.309(d). The examiner did not discuss why the conditions related to the Veteran’s death have no connection to Agent Orange exposure based on current medical studies and literature. Simply stating that the conditions are not related to Agent Orange exposure because the conditions are not listed as presumptive conditions is not sufficient rationale demonstrating that a thorough and thoughtful analysis was rendered considering the relationship between the conditions causing death and Agent Orange exposure. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, a July 2013 letter from J.M., MD indicates that the Veteran was being treated for heart failure. Heart disease is one of the listed conditions related to Agent Orange, yet the examiner did not discuss whether or not the Veteran’s heart failure contributed to the Veteran’s cardiac arrest. Based on the foregoing reasons, the November 2014 VA examination opinion is not sufficient to determine the appellant’s cause of death claim. Accordingly, a remand is necessary to obtain an opinion as to whether the disabilities that caused the Veteran’s death are related to military service. Furthermore, the VA did not meet its duty to assist when the RO did not make sufficient efforts to obtain medical records from the Social Security Administration (SSA). The VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency. In this case, records from the SSA are relevant because they may possess information regarding a potential service-related condition causing or contributing to the Veteran’s death. The VA also did not meet its duty to assist when the RO did not attempt to obtain private medical records from Henry Ford Hospital, Omni Continuing Care, Beaumont Hospital, and Kindred Acute Care. Limited medical records from Henry Ford Hospital and Omni Continuing Care have been received, but it appears that additional relevant records from those facilities are potentially available. The VA must make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Reasonable efforts to obtain records not in the custody of a Federal department or agency generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). No attempts were made by the AOJ to obtain records from these private facilities. As such, the VA failed to meet its duty to assist when it did not make reasonable efforts to obtain the Veteran’s private medical records directly related to his death. Id. Therefore, it is incumbent on the VA to make an initial request for the private medical records and, if they are not received, at least one follow-up request. Id. The matters are REMANDED for the following action: 1. The AOJ should request any relevant Federal records identified that are not duplicates of those already contained in the claims file, to include records from the SSA. 2. The RO must make reasonable efforts to obtain medical records from Henry Ford Hospital, Omni Continuing Care, Beaumont Hospital, and Kindred Acute Care, consisting of an initial request for the records and, if the records are not received, at least one follow-up request. 3. After completion of the first two directives, forward the claims file to an appropriate VA medical provider who has not previously provided an opinion, to obtain an addendum opinion. The claims file, including this remand must be reviewed and such review should be noted in the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the conditions that caused or contributed to the Veteran’s death (cardiopulmonary arrest, acute on chronic ventilator, respiratory failure with pulmonary fibrosis, encephalopathy, and meningitis) had there onset during military service or are otherwise related to such service, to include exposure to Agent Orange. The examiner should also provide an opinion as to whether it is at least as likely as not that any conditions the Veteran was being treated for prior to his death were due to Agent Orange exposure, and if so, did any of those conditions contribute to the Veteran’s death. The examiner should be advised that exposure to Agent Orange is conceded. The examiner must provide a complete rationale for all opinions and conclusions reached. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.