Citation Nr: 18154127
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-31 898A
DATE:	November 29, 2018
ORDER
Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied.
REMANDED
Entitlement to service connection for the cause of the Veteran's death is remanded.
FINDINGS OF FACT
1. The Veteran died in December 2013; on the death certificate the immediate cause of death was listed as acute respiratory failure, due to severe sepsis serratia and candida, due to clostridia difficile colitis, due to end stage chronic lymphatic leukemia.
2. At the time of the Veteran’s death, he was not evaluated as totally disabled for 10 continuous years immediately preceding his death, was not evaluated as totally disabled continuously from the date of separation from service and for a period of not less than 5 years immediately preceding his death, and was not a former prisoner of war.
CONCLUSION OF LAW
The criteria for entitlement to DIC benefits pursuant to 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 served on active duty in the Army from June 1948 to June 1950 and from October 1950 to December 1951.  He died in December 2013 and the appellant is his surviving spouse.  In October 2015, the appellant withdrew her request for a Board videoconference hearing.
Entitlement to DIC under 38 U.S.C. 1318
Pursuant to 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a “deceased veteran” in the same manner as if the death were service-connected. A “deceased veteran” for purposes of this provision is a veteran who dies not as the result of his/her own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling.  38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). 
The service-connected disability(ies) must have been (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the veteran’s death, or (2) continuously rated totally disabling since the Veteran’s discharge or other release from active duty and for at least 5 years immediately preceding death; 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.  Id. 
Review of the record shows that the statutory requirements for an award of DIC benefits under 38 U.S.C. § 1318 have not been met. 
At the time of the Veteran’s death in December 2013, he was service-connected for hearing loss, rated 100 percent, effective October 8, 2009; posttraumatic stress disorder, rated 50 percent, effective March 8, 2006; and tinnitus, rated 10 percent, effective July 6, 2001.  The Veteran had a combined evaluation of 100 percent, effective October 8, 2009. 
Although the Veteran was rated totally disabling at the time of his death, the evidence of record fails to show that he was rated as totally disabled for a period of at least 5 years from the date of his discharge or for at least 10 years preceding his death.  The evidence also fails to show that the Veteran was a prisoner of war.  Accordingly, the appellant is not entitled to DIC benefits under 38 U.S.C. § 1318.
REASONS FOR REMAND
Service Connection for the Cause of the Veteran's Death
The appellant contends that the Veteran’s chronic lymphatic leukemia, the underlying case of his death, was caused by or aggravated by his service.  Specifically, she maintains that the Veteran was an engineer in Korea, responsible for defoliation with chemical agents, which essentially caused his leukemia.  See March 2014 Notice of Disagreement and September 2014 VA Form 9.
The Veteran’s death certificate shows he died in December 2013, while hospitalized at St. Francis Hospital.  The death certificate lists his immediate cause of death as acute respiratory failure, due to severe sepsis serratia and candida, due to clostridia difficile colitis, due to end stage chronic lymphatic leukemia.  The Board initially notes that records from the Veteran’s terminal hospitalization are not of record.  As such records may be pertinent to the claim, an attempt to obtain such records should be made. 
Additionally, the Veteran’s service personnel records indicate active duty service in the Army from June 1948 to June 1950 and from October 1950 to December 1951.  For his second period of active service. he had a little over 11 months of foreign service and was awarded the Korean Service Medal.  His military occupational specialty for both periods is listed as general clerk.  See DD Forms 214.  The Board finds that further development is needed to address whether the Veteran was exposed to chemical agents during his military service.  In the August 2014 statement of the case, it was pointed out that the Veteran served during the Korean War Era and that the Department of Defense had not determined that tactical herbicide agents (like those used during the Republic of Vietnam during the Vietnam War Era) were used in Korea during the Korean War Era.  However, the appellant has not asserted that the Veteran was exposed to herbicide agents specifically in Korea.  Rather, she asserts he was exposed to chemical agents generally.  Complete military personnel records for the Veteran’s active duty service, which could verify duty assignments and locations where exposure to chemical agents might have occurred, should thus be obtained. 
Finally, a VA medical opinion has not yet been obtained in this case.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Because the Board cannot generate its own medical conclusions for use in adjudication, see, e.g., Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), a medical opinion is necessary to determine whether it is at least as likely as not (50 percent or greater) the Veteran’s service-connected disabilities caused or substantially or materially contributed to the cause of his death.
The matter is REMANDED for the following actions:
1.  With any assistance needed from the appellant, attempt to obtain terminal hospital records for the Veteran from St. Francis Hospital. 
2.  Obtain the Veteran’s complete service personnel records through official channels.  Document all attempts to obtain these records.  Attempts shall continue until the records are obtained or further attempts to obtain them would be futile.  If the records cannot be obtained make a finding documenting the reason in a written memo and associate it with the file.
3.  After the above development has been completed, review the file and conduct any necessary and additional development (such as contacting the Joint Services Records Research Center (JSRRC)) and make the appropriate finding as to whether or not the Veteran was exposed to chemical agents in service.
4.  Thereafter, forward the claims file to a VA medical examiner with the appropriate medical expertise to address the question of whether a disease or injury incurred in service was either a principal or contributory cause of the Veteran’s death.  The VA medical provider should review the claims file and note that review in the report. Following a review of the claims file the medical examiner should provide the following opinion:
(A) What were the principal and contributory causes of the Veteran’s death? 
(B) Is it at least as likely as not (a 50 percent or greater probability) that any of the principal or contributory causes of the Veteran’s death are related to his active duty service? 
The examiner’s report must include a complete rationale for all opinions expressed.

 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.R.Fletcher, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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