Citation Nr: 21031528 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-04 495 DATE: May 24, 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 The Veteran was not a former prisoner of war, and at the time of his death, he had not been rated totally disabled for 10 continuous years immediately preceding his death, and was not rated totally disabled continuously since discharge and for at least 5 years immediately preceding death. CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 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 had active service from January 1969 to December 1971, to include service in the Republic of Vietnam. The Veteran died in December 2012. The Appellant is the Veteran's surviving spouse. The Appellant testified before the undersigned at a Board hearing in June 2019; a transcript is of record. The matters were previously remanded for additional development in September 2019. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. The Appellant is claiming entitlement to DIC benefits under 38 U.S.C. § 1318. DIC benefits are payable to a surviving spouse where it is shown that the Veteran's death was not the result of willful misconduct, and he or she was continuously rated totally disabled for the 10 years immediately preceding death, was rated as totally disabling continuously since release from active duty and for at least 5 years immediately preceding death, or was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. At the time of the Veteran's death, he was not service connected for any disability. Accordingly, the Veteran was not rated as totally disabled for a continuous 10-year period prior to his death, or continuously rated totally disabled from the date of his discharge from active duty and for at least 5 years immediately preceding death. In addition, there is no evidence showing the Veteran was a former prisoner of war. Although the issue of entitlement to service connection for the cause of the Veteran's death is remanded below, there is no prejudice to the Appellant by the Board's adjudication of entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 as the pending claim for service connection for the cause of death could not afford an effective date of 10 years prior to his death, in the event that service connection is established for one of the conditions listed as contributing to his death. The record does not reflect that the Veteran was a prisoner of war. In view of the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C. § 1318 is not warranted in this case. The law is dispositive, and the claim is denied. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. Pursuant to the September 2019 Board remand, an addendum medical opinion was obtained in April 2020 to determine whether the Veteran's PTSD contributed to his death. The examiner was instructed to consider articles showing the relationship between PTSD, alcoholism, and hypertension. The examiner was also instructed to address whether the Veteran's PTSD resulted in failure to thrive. The examiner opined that it was less likely than not that the Veteran's PTSD resulted in a failure to thrive, and the medical articles submitted less likely than not applied to this particular instance. The examiner stated that his opinion was based on his review of the record, and although depression is a noted risk factor in the development of failure to thrive, medical records were silent for evidence of depression prior to or at the time of death. With regard to the submitted studies, the examiner pointed out that studies are not conclusions of fact and there was no supporting evidence in medical records that would provide evidence to support his claims. The Board finds the examiner's opinion inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board note that a medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The April 2020 VA examiner stated that the medical record was silent for depression. The Board notes that a November 2010 VA examination notes depression, and the Veteran was given literature on depression following discharge from the hospital in December 2012 prior to his death. As such, the matter must be remanded for an addendum opinion that is based on an accurate factual premise. The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the April 2020 medical opinion, or to a suitably qualified examiner if unavailable. The examiner must provide an opinion as to whether the Veteran's service connected PTSD at least as likely as not (50 percent or greater probability) contributed substantially or materially to his death. The examiner must consider the medical articles submitted by the appellant regarding the relationship between PTSD, alcoholism, and hypertension. The examiner must also address whether the Veteran's PTSD resulted in failure to thrive, which resulted in his death. In so doing, it is essential the examiner provide explanatory rationale, including discussing whether the medical articles submitted by the appellant apply in this particular instance. (Continued on the next page) The examiner must address whether depression is a factor in failure to thrive, and address the multiple instances of depression found in the medical evidence of record. A complete rationale must accompany any conclusion reached. 2. After completion of the above, review the expanded record, and determine whether service connection for the cause of the Veteran's death may be granted. If the benefit sought remains denied, furnish the Appellant with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.