Citation Nr: 21024119 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-11 595 DATE: April 22, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits under 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 At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; and he was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for establishing entitlement to 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 in the United States Army from February 1968 to February 1970. The Veteran passed away in April 2016 ; the appellant is his surviving spouse. The appellant and her two sons testified at a hearing before the undersigned Veterans Law Judge in October 2020. A transcript of that hearing is associated with the claims file. The Board has considered the appellant’s claims and decided entitlement based on the evidence or record. Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to DIC benefits under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318(a), DIC benefits may be payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected in certain instances. In order to establish entitlement to DIC benefits under 38 U.S.C. § 1318, it must be shown that the veteran’s death was not the result of his or her own willful misconduct and that at the time of death, the veteran was receiving, or was entitled to receive, compensation for a 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 5 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 prisoner of war who died after September 30, 1999. The total rating may be based on application of the criteria in the rating schedule or on individual unemployability (TDIU). 38 C.F.R. § 3.22(c); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). The critical facts in this matter are not in dispute. The Veteran was not a former POW. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 10 percent disabling from May 16, 1991, 30 percent disabling from October 29, 2004, and 70 percent disabling from August 7, 2012; tinnitus, rated as 10 percent disabling from August 7, 2012; and bilateral hearing loss, rated as noncompensable from August 7, 2012. He was also in receipt TDIU, effective August 7, 2012. As he died in 2016, his TDIU rating had not been in effect for 10 or more years. Further, as he was discharged from active duty service in 1970, he was not rated as totally disabled for a period of not less than five years from the date of discharge immediately preceding his death. He did not have any other service-connected disabilities, and did not have pending claims for service connection when he died. Thus, the legal criteria for DIC under 38 U.S.C.§ 1318 are not met, and the appeal seeking DIC under 38 U.S.C. § 1318 must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant contends that the Veteran’s service-connected PTSD caused or contributed to the cause of his death. The Veteran’s certificate of death lists the immediate cause of his death as acute hypoxia and hypercapnic respiratory failure, due to or as a consequence of chronic obstructive lung disease (COPD). During her October 2020 hearing before the Board, the appellant and her two sons testified that the Veteran smoked cigarettes and drank alcohol as a coping mechanism, or as a means to self-medicate, for his service-connected PTSD. The appellant noted that the Veteran had tried to quit using tobacco and alcohol in the past, and that each time he tried to quit, his PTSD symptoms worsened as a result and he returned to using alcohol and tobacco. Further, an August 2013 VA examiner noted that the Veteran “used alcohol to cope with his PTSD symptoms and once he quit using alcohol, he developed [major depressive disorder].” In light of the appellant’s testimony and the August 2013 VA opinion suggesting that the Veteran may have used alcohol and tobacco as a means to self-medicate his service-connected PTSD, which may have led to the development of COPD which resulted in his death, a VA opinion should be obtained to discuss the etiology of the cause of the Veteran’s death. The matters are REMANDED for the following action: Provide the Veteran’s claims file to an appropriate VA examiner to obtain an opinion regarding the etiology of the cause of the Veteran’s death. Inform the VA examiner that the Veteran was service-connected for posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss at the time of his death. The entire record should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected PTSD caused or contributed to the cause of his death. The examiner is specifically asked to address the appellant’s testimony and the August 2013 VA examination which suggest that the Veteran used tobacco and alcohol to self-medicate for his service-connected PTSD symptoms. If the examiner finds that the Veteran used tobacco and/or alcohol to self-medicate for his PTSD, the examiner is asked to discuss the impact of such use on the development of the COPD which contributed to his death. In forming the opinion, the examiner is asked to consider and address the appellant’s lay statements and testimony. The examiner is advised that the appellant and her two sons are competent to report observable symptoms and events. All opinions must be accompanied by a complete rationale. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.