Citation Nr: 21024159 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-08 578 DATE: April 22, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to burial benefits at the service-connected rate is remanded. FINDING OF FACT The Veteran was not rated by VA as being totally disabled due to service-connected conditions for a continuous period of at least 10 years immediately preceding death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death; nor was he a prisoner of war. CONCLUSION OF LAW The criteria for DIC under 38 U.S.C. § 1318 are not 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 December 1977 to December 1983. He died in July 2013. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from decisions dated October 2013 and February 2014 by the Department of Veterans Affairs (VA) Pension Management Center (PMC). In March 2020, the appellant testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 1. Entitlement to DIC under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a veteran where it is shown that the veteran’s death was not the result of willful misconduct, and at the time of death the veteran was receiving or was entitled to receive compensation for service-connected disability that was: (1) rated by VA as totally disabling for a period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the Veteran’s release from active duty and for at least five years immediately preceding death; or (3) rated by VA as totally disabling for a period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. The record shows that the Veteran was service connected for gouty arthritis of the left shoulder, left elbow, right elbow, left wrist, right wrist, left hand, right hand, left hip, right hip, left thigh, left knee, right knee, right ankle, and left ankle, with a combined disability rating of 100 percent effective September 7, 2012. See October 2013 Rating Decision. Although the Veteran was rated as totally disabled at the time of his death, that rating was only in effect from September 7, 2012. As stated above, the Veteran was discharged from active duty service in December 1983 and died in July 2013. As the Veteran was in receipt of a 100 percent disability rating for less than 10 years prior to his passing, he did not meet the criteria for entitlement to DIC under 38 U.S.C. § 1318. Accordingly, entitlement to DIC under 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran’s causes of death are listed as cardiac arrhythmia/dysrhythmia, due to probable sepsis; with ischemic heart disease, diabetes mellitus, and hypertension listed as underlying causes of death. See July 2013 Certificate of Death. The appellant asserts that the Veteran’s cause of death is related to his service-connected gouty arthritis. Specifically, she testified that the Veteran’s gouty arthritis led to his death. See March 2021 Hearing Transcript. Considering the evidence and testimony, the Board finds there is a duty to obtain a VA medical opinion regarding this contention. 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Finally, the Board notes that the medical records leading up to the Veteran’s death have not been associated with the claims file. On remand, the appellant should be provided the opportunity to identify any pertinent medical records, as detailed below. 2. Entitlement to burial benefits at the service-connected rate is remanded. The Board notes that the appellant’s claim for increased burial benefits is intertwined with the cause of death claim, and therefore must also be remanded at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the appellant the opportunity to identify and authorize VA to obtain all outstanding VA and private medical records, to include those documenting treatment the Veteran received leading up to his death. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If any outstanding records are unavailable, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, arrange to obtain a medical opinion addressing the Veteran’s cause of death from an appropriate examiner. The contents of the claims file, to include a copy of this REMAND, must be made available to the designated examiner, and the report must reflect that such a review was undertaken. Following a review of the claims file, the examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected gouty arthritis was either the principal or contributory cause of his death? * The examiner should consider and address any appropriate medical literature regarding a connection between gout and an increased risk of diabetes mellitus and cardiovascular disease. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected gouty arthritis caused debilitating effects and general impairment of health to an extent that would render the Veteran materially less able to resist the effects of other disease or injury primarily causing death? Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to burial benefits at the service connected rate. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Stedman, Michael 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.