Citation Nr: 22012253 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-42 623 DATE: March 3, 2022 ORDER The claim of entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1318 is denied. REMANDED The claim of entitlement to service connection for the cause of the Veteran's death, to include entitlement to service-connected burial benefits, is remanded. FINDINGS OF FACT 1. The Veteran passed away in September 2016. 2. The Veteran was not a prisoner of war (POW), was not rated as totally disabled due to service-connected disabilities for 10 continuous years immediately preceding his death and was not rated as totally disabled continuously since his release from active duty and for at least 5 years immediately preceding his death. CONCLUSION OF LAW The criteria for entitlement to DIC benefits 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 FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1968 to June 1970. The Veteran passed away in September 2016 and his surviving spouse filed the present claim. The instant matter is on appeal from a January 2017 rating decision. In October 2021, the Appellant testified before the undersigned in a Travel Board hearing. A transcript of the proceedings has been associated with the record. 1. The claim of entitlement to DIC under the provisions of 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 a 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 requirements for DIC benefits under 38 U.S.C. § 1318 have not been satisfied. The Certificate of Death shows the Veteran died in September 2016. At the time of his death, the Veteran was not in receipt of service connection for any disability, nor did he have a TDIU. Additionally, the file does not reflect that he had a pending claim at the time of his passing. Thus, an effective date of a 100 percent disability rating at least ten years prior to the Veteran's death is not possible. Additionally, the Veteran was also not a POW, nor was he rated as totally disabled at any point from his June 1970 discharge until his passing in September 2016. Accordingly, the criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are not satisfied. As the claim must be denied as a matter of law, the benefit-of-the-doubt rule does not apply. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. The claim of entitlement to service connection for the cause of the Veteran's death, to include entitlement to service-connected burial benefits, is remanded. The Board sincerely regrets the additional delay, but remand is necessary in order to conduct an appropriate search regarding the claimed herbicide agent exposure. In May 2018, the Regional Office (RO) issued a formal finding determining that they did not have sufficient information to submit to the Joint Services Records Research Center (JSRRC) to investigate the claimed exposure to herbicide agents. The RO stated that the Appellant did not provide two-month increments of the Veteran's presence in Thailand, so they could not complete the necessary information for the records search. This finding is in error as the evidence of record reflects that the RO was in possession of the precise dates of the Veteran's service in Thailand. Earlier documents, including a February 2018 email correspondence, note the Veteran's deployment to Thailand from April 1969 to June 1970. This email also documents the Veteran's unit of assignment, military occupational specialty, and station in Thailand. Accordingly, the AOJ had sufficient information with which to conduct a search of the records, and such must be completed on remand. The matters are REMANDED for the following action: 1. Attempt to verify the asserted in-service exposure to herbicide agents based upon the dates and locations already associated with the claims file, to include the February 2018 email correspondence. If more details are needed, contact the Appellant to request the information. All correspondences pertaining to this search must be associated with the claims file, and a formal finding regarding exposure authored once the search is complete. 2. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant and the representative of record an opportunity to respond, and return the case to the Board. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.