Citation Nr: 22018509 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-52 667 DATE: March 29, 2022 ORDER Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died on November [REDACTED], 2016. 2. At the time of the Veteran's death, he was in receipt of a 100 percent combined rating award beginning on November 27, 2007. 3. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred more than 30 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for DIC under the provisions of 38 U.S.C. § 1318 are not met. 38 U.S.C. §§ 1318, 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1959 to September 1963. Regrettably, the Veteran died in November 2007. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. The appellant and her son testified at a hearing before the undersigned Veterans Law Judge of the Board in January 2022. A transcript of the hearing has been associated with the claims file. Entitlement to DIC under 38 U.S.C. § 1318 The appellant seeks entitlement to DIC under 38 U.S.C. § 1318. Specifically, she asserts that the Veteran attempted to obtain entitlement to service connection in the 1980s and that he was previously denied until November 2007. Accordingly, she asserts that the Veteran should have been awarded a 100 percent combined rating for compensation for more than 10 years prior to his death. See e.g. Board hearing transcript, January 3, 2022; see also VA Form 21-534, March 9, 2017. VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW and 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(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of the statute and regulation, "entitled to receive" includes a situation in which the veteran would have received total disability compensation at the time of death but for clear and unmistakable error in a decision on a claim filed during the veteran's lifetime. 38 C.F.R. § 3.22(b)(1). If the veteran's death is not determined to be related to a service-connected disability, as in this case, a surviving spouse may still be entitled to DIC benefits. Pursuant to 38 U.S.C. § 1318, benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service connected. Initially, the Board notes that it finds that the appellant has limited her appeal to entitlement to DIC under the provisions of 38 U.S.C. § 1318 based upon her testimony and assertions of her representative that she was not claiming service connection for cause of the Veteran's death, and the fact that she discussed only this theory of entitlement in her notice of disagreement and substantive appeal. See Board hearing transcript, January 3, 2022. In the present case, the Veteran was discharged from service in September 1963. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss and tinnitus and the Veteran's combined rating for compensation was 100 percent effective November 27, 2007. Further, the appellant does not claim, and the record does not show, that the Veteran was a prisoner of war. The Board notes that a rating decision dated February 25, 2008 granted entitlement to service connection for bilateral hearing loss and tinnitus, effective November 27, 2007. There are no documents associated with the Veteran's claims file prior to November 26, 2007 nor related to any other pending claims at any time. The Veteran was notified of the February 2008 rating decision in a letter February 28, 2008. This decision became final as no further claim or disagreement was received within a year of this decision. In sum, after a review of the record, the Board finds that entitlement to DIC under 38 U.S.C. § 1318 is not warranted. The evidence of record does not show that the Veteran was continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits under 38 U.S.C. § 1318 are not met. Accordingly, the criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are not satisfied. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appeal is denied. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.