Citation Nr: 22042663 Decision Date: 07/27/22 Archive Date: 07/27/22 DOCKET NO. 17-44 644 DATE: July 27, 2022 ORDER Entitlement to death and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to a death pension is remanded. FINDING OF FACT At the time of death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disabilities continuously rated totally disabling for a period of 10 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 served on active duty from June 1965 to April 1968. The Veteran died in August 2016 and the appellant seeks surviving spouse benefits. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision and a December 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the appellant submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in May 2018. However, the RAMP program was limited to veterans only at that time. The appellant was notified of that in November 2018 correspondence. Therefore, the Board will undertake appellate review of the case in the Legacy appeals system. In April 2022, the appellant appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Following the hearing, the record was held open for 60 days to allow for the submission of additional evidence. In May 2022, the appellant submitted additional evidence. Entitlement to DIC pursuant to 38 U.S.C. § 1318. Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service-connected, if the veteran died not as the result of the Veteran's own willful misconduct and was, at the time of death, either in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran 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 his death in August 2016, the Veteran was service-connected for posttraumatic stress disorder (PTSD), which had been rated 100 percent disabling since May 28, 2014. There are no pending claims for accrued benefits. The Board finds that the Veteran was not rated as totally disabled as the result of a service-connected disability for a period of ten years or more or for a period of five years from the date of separation from active duty. Additionally, the Veteran was not a former prisoner of war. Under those undisputed facts, the legal criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 are not met. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for the Veteran's cause of death. The appellant is seeking service connection for the Veteran's cause of death. The Veteran's death certificate indicates that he died due to an immediate cause of respiratory failure, due to or as a consequence of metastatic adenocarcinoma of unknown origin with significant conditions contributing to death of chronic kidney disease, chronic hepatitis, and hypertension. During the April 2022 Board hearing, the appellant reported that the Veteran was treated for prostate cancer in 2014 and 2016. The appellant also reported that the Veteran was treated for liver and lung cancer. She further reported that a physician told her that the Veteran's death was possibly related to herbicide agent exposure during service in Vietnam. The appellant stated that the Veteran was treated by VA facilities in San Antonio, Texas and Miami, Florida and also received treatment at a private university hospital and possible treatment at VA facilities in Houston, Texas and Atlanta, Georgia. The service records show that the Veteran received the Republic of Vietnam Campaign Medal with Device and the Vietnam Service Medal with three Bronze Stars. The service records also show that the Veteran served aboard the USS Hornet from September 1965 to November 1967. However, the service records do not establish that the Veteran served ashore in Vietnam, in the inland waterways of Vietnam, or in the territorial waters of Vietnam. The service medical records do not show treatment for cancer, hepatitis, hypertension, or any kidney disorder. The April 1968 service separation examination was marked normal for examination of the lungs, chest, heart, and vascular system. His blood pressure was reported as 120/72. The VA treatment records show treatment for prostate cancer. In March 2013, the Veteran underwent a radical prostatectomy. The treatment record notes bilateral prostatic adenocarcinoma, confined to the prostate. In a September 2014 statement, the Veteran reported serving aboard the USS Hornet while it was in the Gulf of Tonkin in 1965 and 1966. He also claimed to have flown on classified secret missions to Danang, Vietnam and Saigon, Vietnam. The Veteran noted that he has been diagnosed with prostate, liver, and lung cancer. Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to service connection for the conditions related to herbicide exposure if they meet the other requirements of 38 U.S.C. § 1116. 38 C.F.R. § 3.309(e). Therefore, the Board finds that remand is necessary for this claim. A determination is needed as to whether the Veteran was exposed to herbicide agents while stationed aboard a ship in Vietnam's territorial waters. In addition, it does not appear that all VA treatment records are associated with the file. Furthermore, if the Veteran was exposed to herbicide agents during service, a medical opinion should be obtained to determine if any of the Veteran's causes of death were causally or etiologically related to herbicide agent exposure. 2. Entitlement to a death pension. The appellant is seeking death pension. In an August 2016 pension application, the appellant reported having a dependent child and $10,000 in income. She reported receiving Social Security Administration (SSA) income for the minor son. In December 2016, SSA information was associated with the file which showed that the Veteran's son received $969 per month in income from August 2016 to November 2016 and $972 per month in income after December 2016. That information also indicated that the appellant did not receive SSA income after September 2015. In a December 2016 decision denying this claim, the RO found that the appellant's income exceeded the applicable maximum annual pension limit based on SSA income for the appellant and her son and an SSA death benefit of $255 and $10,000 in annual earnings. During the April 2022 Board hearing, the appellant reported that the $10,000 annual income reported on the application form was Workers' Compensation for the prior year and that she did not have income in 2016. She also reported that she now received SSA income and that her Medicare premiums were paid by a state program. As the appellant's income used in the December 2016 decision on appeal appears to be in dispute and her income has changed since that decision, remand is necessary to allow the appellant an opportunity to submit income information and any unreimbursed medical expenses from August 2016 to the present. In addition, the RO should obtain from the SSA the appellant's and son's SSA benefits for the entire appeal period. The matters are REMANDED for the following action: 1. Furnish the appellant an Improved Pension Eligibility Verification Report and a Medical Expense Report and request that she complete and return the forms with income and expense information for each year from October 2016 to the present. 2. Obtain verification from the SSA of the appellant's and her son's SSA benefits from October 2016 to the present. 3. After obtaining any necessary releases, obtain all relevant private treatment records not already associated with the claims file. The RO should send the appellant a letter requesting that identification and submission of all non-VA medical records. All attempts to locate records must be documented in the claims file. 4. Obtain all outstanding VA treatment records for the Veteran, to include any treatment records at facilities located in and around San Antonio, Texas; Houston, Texas; Miami, Florida; and Atlanta, Georgia. 5. Request the Defense Personnel Records Information Retrieval System (DPRIS) or another appropriate Federal department, make a determination as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran was exposed to herbicide agents during active service. The appropriate service department or entity should make a determination as to whether the USS Hornet was positioned 12 nautical miles or fewer from the Republic of South Vietnam land mass during the time the Veteran served aboard the ship. Any research must not only include the Veteran's individual personnel record, but also an analysis of any operations and deployments of his unit or ship, or individuals stationed on that ship. A copy of any requests sent to appropriate entities, and any reply, to include any negative reply, should be associated with the claims file. If the event is not verified, an official determination so indicating should be entered into the record. 6. If the Veteran is found to have been exposed to herbicide agents during service, have the claims file reviewed by a qualified medical doctor examiner. A clearly stated rationale with references to the record, diagnostic tests, and medical literature should be provided for the opinions provided. The examiner is advised that a negative opinion based solely on the fact that VA has not recognized a condition as presumptively related to herbicide exposure is not an adequate opinion. The examiner should provide the following information: (a.) Opine whether it is at least as likely as not that the Veteran's death due to or as a consequence of metastatic adenocarcinoma unknown origin was causally or etiologically related to service, to include herbicide agent exposure. (b.) Opine whether it is at least as likely as not that that the Veteran's chronic kidney disease was causally or etiologically related to service, to include herbicide agent exposure. (c.) Opine whether it is at least as likely as not that the Veteran's chronic hepatitis was causally or etiologically related to service, to include herbicide agent exposure. (d.) Opine whether it is at least as likely as not that hypertension was causally or etiologically related to service, to include herbicide agent exposure. The examiner should consider the November 2018 NAS study finding sufficient evidence of a positive association between hypertension and exposure to tactical herbicides. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.