Citation Nr: 22013645 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 19-04 384 DATE: March 10, 2022 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 evaluated as totally disabled as a result of his service-connected disabilities for 10 continuous years immediately preceding death, rated as totally disabled continuously for a period of no less than five years from the date of discharge from active duty, and was not shown to be a former prisoner of war. CONCLUSION OF LAW The criteria for entitlement to DIC benefits 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 August 1971 to May 1974, from April 1998 to September 1998, and from March 2003 to December 2004. He died in June 2018. The Appellant is his surviving spouse. In October 2021, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Entitlement to DIC benefits under 38 U.S.C. § 1318 The appellant asserts that she is entitled to DIC benefits. A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the Veteran's death was not the result of his own willful misconduct and, at the time of death, the veteran was receiving compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for a period of at least five years immediately preceding death; or, (3) 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. See 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The Veteran was released from active duty in December 2004. At the time of his death in June 2018 he was in receipt of service-connected benefits for posttraumatic stress disorder (PTSD); lumbar spine degenerative joint disease with bulging; right lower radiculopathy involving the femoral nerve roots; degenerative joint disease of the right shoulder; degenerative joint disease of the right foot; degenerative changes of the left foot; right knee instability; left knee instability; degenerative joint disease of the left knee; degenerative joint disease of the right knee; tinnitus; left lower radiculopathy involving the femoral nerve roots; bilateral hearing loss; and erectile dysfunction. The Veteran was not in receipt of total disability rating until September 17, 2013. There is no evidence to suggest that he was a prisoner of war, and the appellant has not alleged such a fact. Accordingly, he was not rated by VA as totally disabled for a continuous period of at least 10 years immediately preceding death; was not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death; and has not been shown to be a former prisoner of war. 38 C.F.R. § 3.22 (a). Thus, the statutory criteria under 38 U.S.C. § 1318 have not been met. The Board also notes that there are no claims pending that would increase the Veteran's service-connected disability to 100 percent disabling. Nevertheless, even if the Veteran's service-connected posttraumatic stress disorder was assigned a 100 percent rating, the earliest effective date of that rating could not precede his death by 10 years or more, and therefore the entitlement to DIC under section 1318 is not inextricably intertwined with entitlement to service connection for death. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to DIC under 38 U.S.C. § 1318 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellant testified at the Board hearing that she believes the Veteran's service-connected disabilities contributed to his death. In support of her claim, she submitted a letter from a VA doctor who identified himself as the Veteran's treating physician just before his death. The VA doctor stated that he believed the Veteran's service-connected PTSD hastened his death from complications of lung cancer. The doctor stated his belief that the Veteran's PTSD symptoms contributed to his drinking and depression, which prevented him from taking in enough calories to effectively fight his cancer. VA treatment records confirm the Veteran was being treated for non-small cell lung cancer just before his death. His death certificate only lists acute cardiopulmonary insufficiency as the immediate cause of death, which presumably was a complication resulting from his cancer. Remand is needed to obtain a VA examiner's opinion addressing statements from the Veteran's treating VA doctor indicating that the Veteran's service-connected PTSD symptoms may have contributed to his death. The matters are REMANDED for the following action: Obtain an addendum opinion on the likely etiology of the Veteran's cause of death. Copies of all pertinent records should be made available to and reviewed by the examiner. Based on a review of the complete record, the examiner must answer the following question: Is it at least as likely as not (a 50 percent or greater probability) that the cause of the Veteran's death, noted on the death certificate as due to acute cardiopulmonary insufficiency, was due to or related to his service-connected PTSD? In answering this, the examiner should discuss the October 2021 statement from Dr. W.S.K. The rationale for all opinions expressed should be provided in a report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.