Citation Nr: 21031290 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-60 312 DATE: May 21, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of Veteran's death is remanded. FINDING OF FACT The Veteran passed way in April 2017. During the Veteran's lifetime, he was in receipt of a permanent and total rating for service-connected posttraumatic stress disorder (PTSD) with depression, evaluated as 70 percent disabling effective April 19, 1998, and total disability rating based on individual unemployability (TDIU) due to his service-connected disability effective July 1, 2010. CONCLUSION OF LAW The criteria for entitlement to 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 October 1966 to August 1970. The evidence of record also indicates that the Veteran was transferred to the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in April 2017. The Appellant is the Veteran's surviving spouse. The Appellant testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in August 2020; a transcript is of record. 1. Entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied. Pursuant to 38 U.S.C. § 1318, a deceased veteran is a veteran who dies, not as a result of the veteran's own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retried or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the Veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. For purposes of this section, a total rating at the time of death may be established by a single or combined schedular total rating or an award of TDIU. 38 C.F.R. § 3.22(c). A September 2011 rating decision notes that the Veteran had been rated as 70 percent disabled due to his service-connected PTSD with depression effective April 19, 1998 and had been granted a TDIU effective July 1, 2010. As noted above, the Veteran died in April 2017, approximately seven years after the award of his total disability evaluation and approximately 40 years after his separation from active duty service. The record does not reflect that the Veteran was a prisoner of war. Because the Veteran's total disability evaluation was granted for seven years prior to his death, 40 years after his separation from military service, and the Veteran has not been evidenced to be a prisoner of war, the Board has no choice but to deny entitlement to DIC pursuant to 38 U.S.C. § 1318, as the statutory requirements have not been met. See 38 U.S.C. § 1318. REASONS FOR REMAND 1. Entitlement to service connection for cause of Veteran's death is remanded. The Board sincerely regrets the delay of a remand for this issue; however, further evidentiary development is necessary before the Appellant's claim for service connection for the cause of Veteran's death can be adjudicated on the merits. As noted above, there is evidence affiliated with the claims file indicating that the Veteran was transferred from active duty service to the Reserve. Although there are service treatment records and service personnel records associated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA. Here, the Board notes that the causes of the Veteran's death, as listed on the April 2017 death certificate, are cardiac arrest and congestive heart failure. The RO previously denied service connection for the cause of Veteran's death as congestive heart failure is not a presumptive condition affiliated with exposure to herbicide agents. The RO conceded that the Veteran was exposed to herbicide agents. See July 2017 Rating Decision. However, the Board acknowledges that even where service connection cannot be presumed, it may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board also acknowledges medical evidence indicating that the Veteran was diagnosed with heart failure, hypertension, and atherosclerosis. See March 2017 VA CT of Abdomen and Pelvis; January 2016 VA Primary Care Note; February 2016 VA Cardiology Consult. Further, it is noted in the Veteran's VA medical records that he received treatment at a facility outside of the VA in January 2016. See January 2016 VA Primary Care Note; February 2016 VA Cardiology Consult. On remand, the Board requests that the Veteran's medical records from the outside facility, with authorization from the Appellant, be obtained. After said records have been obtained, the Board requests that an opinion be obtained to determine the etiology of the Veteran's cause of death. The Board notes the Appellant's assertions, as noted in her competent lay statements including hearing testimony, should be addressed in the opinion. The Appellant asserts that the Veteran's congestive heart failure is due to service, or, alternatively, that it was caused by his service-connected PTSD. Also, the Appellant claims that the Veteran, although never diagnosed with diabetes, had glucose measurements taken in his VA records that meet the diagnostic criteria by the American Diabetes Association for type 2 diabetes, which in turn is affiliated with his congestive heart failure. See August 2020 Hearing Transcript. However, the Appellant, as a lay person, while competent to attest to the Veteran's observable symptomatology, is not competent to attest to the etiology of the cause of the Veteran's death, as this area falls outside the realm of common knowledge of a lay person. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran's Reserve service should also be obtained and associated with the claims file. 2. Then, contact the Appellant and obtain authorization to obtain medical records from the Veteran's hospitalization at Grays Harbor Hospital in January 2016. She should also be invited to submit these records herself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Appellant and her representative should be so notified in writing. 3. Then, forward the claims file to an appropriate clinician for an opinion as to the etiology of the causes of Veteran's death: cardiac arrest and congestive heart failure. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. (a) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cardiac arrest and/or congestive heart failure manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA, including due to herbicide agent exposure. (b) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cardiac arrest and/or congestive heart failure was either (i) caused or (ii) aggravated by his service-connected PTSD with depression. The clinician should also opine as to whether opiate treatment worsened his service-connected PTSD with depression, in turn causing his congestive heart failure. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to determine the baseline level of severity of disability prior to such aggravation. (c) The clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran had untreated diabetes mellitus which manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA, including due to herbicide agent exposure. If diabetes mellitus is found, the clinician should opine as to whether it is at least as likely as not that said diabetes mellitus contributed to the Veteran's cardiac arrest and/or congestive heart failure. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's VA medical records; (iii) The Veteran's private medical records; and (iv) The Appellant's competent statements as to the Veteran's observable symptomatology and her assertions, including but not limited to those made in her September 2017 Notice of Disagreement, September 2017 VA Form 21-4138, November 2017 VA Form 9, and August 2020 Hearing Testimony. If the clinician determines that the Veteran's cardiac arrest and/or congestive heart failure is less likely than not due to his active duty service, ACDUTRA, or INACDUTRA, and/or caused and/or aggravated by his service-connected PTSD, and/or that the Veteran does not have diabetes mellitus due to active duty service, ACDUTRA, and/or INACDUTRA which in turn contributed to his cause of death, the clinician should discuss what other factor(s) caused the cardiac arrest and congestive heart failure. A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.