Citation Nr: 21041620 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-25 153 DATE: July 9, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSION OF LAW The criteria for 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 from July 1974 to July 1976. The Veteran passed away in July 2018. The Appellant is the Veteran's wife. In February 2021, the Appellant testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. The Appellant's representative argued that a medical opinion for the Veteran's cause of death was warranted. This is addressed in the remand section below. Neither the Appellant nor her representative have raised any issues with the duty to notify or duty to assist related to the issue of entitlement to DIC under 38 U.S.C. § 1318. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Dependency and Indemnity Compensation Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for 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 five 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 either schedular or based upon unemployability. 38 U.S.C. § 1318. For DIC benefits to be awarded to the appellant under the provisions of 38 U.S.C. § 1318, it must be established that the Veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). At the time of the Veteran's death, the Veteran was rated as totally disabled. The Veteran had a 100 percent disability rating from February 27, 2009 and was afforded a total disability rating based on individual unemployability from January 23, 2009. However, while the Veteran was rated as totally disabled, his rating was not in effect for a period of 10 years preceding his death. The Veteran died in July 2018 and the earliest he was rated as totally disabled was in January 2009. The Veteran had temporary a 100 percent rating from September 12, 2007 to October 31, 2008. Then his disability rating was 40 percent beginning November 1, 2008. Therefore, his 100 percent rating from September 12, 2007 was not continuous for the 10 years preceding the Veteran's death. His 100 percent rating did not become effective again until January 23, 2009. Furthermore, it is undisputed that the Veteran was not a former prisoner of war. Accordingly, the criteria for establishing DIC under 38 U.S.C. § 1318 have not been met, and the claim is denied as a matter of law. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND A medical opinion concerning the possible relationship between the Veteran's service connected posttraumatic stress disorder (PTSD) and his cause of death is needed. Additionally, the Appellant's representative argued that the Veteran's pancreatic cancer was caused by herbicide agent exposure. While the Veteran served during the Vietnam era, the evidence does not show he had the requisite service for presumed herbicide agent exposure. See 38 C.F.R. § 3.307. However, as the case is being remanded for an opinion concerning the cause of death, the Appellant should be asked to provide details about the Veteran's claimed herbicide agent exposure. The Board emphasizes that it is not determining whether or not the Veteran was exposed to herbicide agents at this time, as the additional development set forth in the directives below could impact that determination. The Board is requesting a medical opinion regarding herbicide exposure for efficiency. If it is later determined that the Veteran was exposed to herbicide agents, a medical opinion will already be of record. The matters are REMANDED for the following action: 1. Allow the Appellant to provide evidence showing that the Veteran served in the Republic of Vietnam during his active duty service. 2. Send the Veteran's claims file to appropriate clinician so a nexus opinion may be provided. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a. For the purposes of this remand directive only, and for the limited purposes of providing a medical opinion, the clinician should assume that the Veteran was exposed to herbicides and opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pancreatic cancer was related to herbicide agent exposure. It is insufficient for the clinician to provide a negative opinion merely because pancreatic cancer is not a condition on the presumption list for exposure to herbicide agents. b. Assuming that the Veteran was not exposed to herbicide agents, the clinician must opine as to whether it is at least as likely as not that the Veteran's pancreatic cancer began in service or is directly related to his service. c. Whether it is at least as likely as not that the Veteran's pancreatic cancer was proximately due to or the result of his service connected PTSD. d. Whether it is at least as likely as not that the Veteran's pancreatic cancer was aggravated beyond its natural progression by his service-connected PTSD. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. (Continued on the next page) 3. Then, readjudicate the claim. If any decision is adverse to the Appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.