Citation Nr: 0005494 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-38 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151. 4. Entitlement to DIC under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty between February 1956 and July 1976. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO denied service connection for the cause of the veteran's death and denied entitlement to DEA benefits. In a subsequent rating action, the RO denied entitlement to DIC for persons disabled by VA treatment under 38 U.S.C. § 1151, and denied DIC benefits for total disability ratings at the time of death under 38 U.S.C. § 1318. FINDINGS OF FACT 1. The veteran died in December 1995 at the age of 58 years. 2. The certificate of death lists the cause of death as metastatic pancreatic cancer, with no underlying cause of death. 3. Prior to his death, the veteran had service connected disabilities from total arthroplasty, right knee, rated 20 percent disabling from April 1989, and temporarily rated 100 percent disabling from the date of arthroplasty on November 18, 1994, through December 1995, to be followed by a minimum rating of 30 percent; degenerative arthritis, left knee, rated as 10 percent disabling; and dyshidrotic eczema of both feet, rated as noncompensable, for a combined permanent rating of 40 percent. 4. The veteran had active service in the Republic of Vietnam during the Vietnam War era. 5. The record contains no competent medical evidence that any of the veteran's service connected disabilities was either the principal cause of his death or a contributory cause of death. 6. The record contains no competent evidence that the veteran had a service connected condition affecting vital organs that was 100 percent disabling at the time of his death. 7. The record contains no competent evidence that the veteran had metastatic pancreatic cancer during active military service. 8. VA does not recognize the veteran's pancreatic cancer as etiologically related to exposure to herbicide agents used in Vietnam. 9. The record contains no competent medical evidence that the veteran's pancreatic cancer was related to exposure to herbicide agents during his service in Vietnam. 10. The record contains no competent medical evidence of a nexus between the veteran's death from metastatic pancreatic cancer and any inservice disease or injury. 11. The record contains no competent medical evidence that the veteran's pancreatic cancer condition was aggravated by VA medical treatment, or lack of treatment, resulting in his death. 12. The record contains no competent evidence that the veteran's VA medical treatment for a foot condition led to liver dysfunction and contributed to his death. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 1110. 5107(a) (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309, 3.312 (1999). 2. The appellant's claim for entitlement to DEA benefits is not well grounded. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. § 3.807 (1999). 3. Metastatic pancreatic cancer is not proximately due to or the result of a service connected disability. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 3.310(a) (1999). 4. The veteran's service connected disabilities did not contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1112, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.312 (1999). 5. The appellant has not presented a well-grounded claim for benefits for additional disability, claimed as liver dysfunction resulting from VA outpatient treatment for a foot condition and delayed diagnosis of pancreatic cancer. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999). 6. The criteria for dependency and indemnity compensation benefits based on a total disability rating due to service- connected disability at the time of the veteran's death have not been met. 38 U.S.C.A. § 1318 (West 1991); 38 C.F.R. § 3.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant has claimed entitlement to DIC benefits based on several theories: service connection for the cause of the veteran's death, entitlement under 38 U.S.C.A. § 1151 due to VA treatment, and entitlement under 38 U.S.C.A. § 1318 because the veteran was rated 100 percent disabled at the time of his death. The Board will address each of these theories of entitlement in turn. Although the RO did not specifically state that it denied the claim on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, supra (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that denying the claim because the claim is not well grounded is not prejudicial to the appellant, as the appellant's assertions concerning the merits of the claim included, at least by inference, the argument that sufficient evidence to establish a well grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOGPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. For the reasons discussed below, the Board finds that the claim is not well grounded. The Court has held that, when a claimant fails to submit a well grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996). In the present case, the Board finds that this procedural consideration has been satisfied. In particular, the Board notes that the statement of the case issued in conjunction with this appeal advises the appellant that evidence fails to show that the cause of the veteran's death was related to his military service, and that there is no evidence of any relationship between the veteran's death from metastatic pancreatic cancer and his service connected disabilities. The supplemental statement of the case in August 1999 likewise addressed entitlement under 38 U.S.C.A. §§ 1151 and 1318. Moreover, unlike the situation in Robinette, supra, the appellant has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make her claim well grounded. I. Service Connection for the Cause of the Veteran's Death The threshold question that must be resolved regarding each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) has held that a well grounded claim for service connection is comprised of three specific elements: (1) evidence of a current disability as provided by a medical diagnosis, (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability, as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). In the absence of any one of these three elements, the Board must find that a claim for service connection is not well grounded and therefore must be denied, pursuant to the decision of the Court in Edenfield v. Brown, 8 Vet. App. 384 (1995). A. Is the Medical Condition on the Death Certificate Service Connected? In applying the three-step analysis for a well-grounded claim under Caluza, supra, to an issue of service connection for the cause of death, the first element, a medical diagnosis of a current disability, will always be met since the current disability is the condition that caused the veteran's death. Ramey v. Brown, 9 Vet. App. 40, 46 (1996). In this case, the death certificate indicates that the veteran died in December 1995 at the age of 58 years. The cause of death was metastatic pancreatic cancer. The death certificate does not list an underlying cause of death, and notes that approximately 4 months elapsed between disease onset and death. This is the current disability. Thus, to establish a well-grounded claim under Caluza the appellant must only provide evidence of incurrence or aggravation of disease or injury in service, and competent medical evidence of a causal nexus between the current disability and the inservice injury or disease. As for evidence of incurrence or aggravation of an inservice disease or injury, the kind of evidence necessary depends on the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. The appellant argues that the veteran's cancer was caused by exposure to herbicide agents during wartime service in Vietnam. A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era, and develops a disease listed in 38 C.F.R. § 309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. Diseases or disorders that have been positively associated with Agent Orange or other herbicide exposure are chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda (PCT), prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). The veteran served in the Republic of Vietnam with the Marine Corps during the Vietnam War era. However, this Vietnam service, alone, is not sufficient evidence to presume exposure to a herbicide agent in service. The veteran must also present evidence that he has one of the diseases listed in 38 C.F.R. § 3.309(e) in order for the presumption of exposure to herbicide agents to take effect, assuming there is no affirmative evidence to show that the veteran was not exposed to the agents in service. Darby v. Brown, 10 Vet. App. 243, 246 (1997); 38 C.F.R. § 3.307(a)(6)(iii) (1999). In this case, the veteran's service medical records do not show any record of treatment for cancer of any type in service. In fact, no evidence has been presented that he was ever diagnosed with any of the aforementioned diseases or disorders, as a primary illness, associated with exposure to herbicides. As for the origin of metastatic pancreatic cancer, the appellant contends that this cancerous condition arose in a location enumerated in 38 C.F.R. § 3.309(e), namely in the veteran's prostate, respiratory system, or one of the soft tissues enumerated in the regulation, and was not due to a metastasis from pancreatic cancer. The Board reviewed all the medical records in evidence and does not find merit in the appellant's assertion. The VA inpatient treatment report from July to August of 1995 shows that the veteran was admitted with complaints of chronic diarrhea, weight loss and a history of diabetes, including two prior hypoglycemic episodes. He underwent an esophagogastroduodenoscopy (EGD), endoscopic retrograde cholangiopancreatography (ERCP), colonoscopy, celiac arteriogram, exploratory laparotomy, attempted Whipple procedure and wedge liver biopsy. The operation revealed that the veteran had pancreatic cancer with liver metastasis. There is no evidence from this operation and subsequent treatment that the veteran developed a primary carcinoma in any of the locations enumerated in 38 C.F.R. § 3.309. The appellant's arguments to the contrary are not supported by the evidence. The Board finds that this evidence at the first findings of carcinoma supports, and is consistent with, the final diagnosis 5 months later at the time of the veteran's death that he died from metastatic pancreatic cancer. Therefore, the Board finds that the evidence does not support the appellant's theory that the veteran had primary prostate or respiratory cancer or one of the soft tissue carcinomas enumerated in § 3.309(e), which might be presumed to be caused by exposure to herbicide agents. The Board finds that the evidence shows that pancreatic cancer was the sole primary malignancy leading to the veteran's death. Pancreatic cancer is not one of the diseases that VA has positively associated with exposure to herbicide agents in Vietnam. The appellant can still prevail, nonetheless, in her claim if she can present competent medical evidence showing a nexus between herbicide exposure during the veteran's service and his development of pancreatic cancer. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board concludes, however, that the appellant has not presented a well grounded claim on this basis. There is no competent medical evidence that the veteran's death from pancreatic cancer was related to herbicide exposure in service or was otherwise related to disease or injury during service. The appellant's assertions that such a relationship exists are not afforded any probative weight without evidence that she has the expertise to render opinions about medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes that she has not presented any physician's opinion that her husband developed pancreatic cancer as a result of exposure to Agent Orange or other herbicides. Without evidence that the veteran died as a result of a disease from which exposure to Agent Orange or other herbicide agents can be presumed, and without medical evidence of a nexus between the veteran's metastatic pancreatic cancer and any in-service disease, injury, or herbicide exposure, the Board finds that the evidence concerning metastatic pancreatic cancer does not meet the criteria set forth in Caluza, supra. B. Were the Service Connected Disabilities the Cause of Death? Even though the condition listed on the veteran's death certificate is determined not to be service connected, the cause of the veteran's death may still be service connected if a disability which the veteran incurred or aggravated in service was either the principal or contributory cause of his death. 38 C.F.R. § 3.312(a) (1999). For a service connected disability to be the principal cause of death, that disability must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 3.312(b) (West 1991). For a service connected disability to be a contributory cause of death, that disability must contribute substantially or materially to the death; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1) (1999). See Harvey v. Brown, 6 Vet. App. 390 (1994). A service connected disability may be a contributory cause of death if it results in debilitating effects and general impairment of health to the extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (1999). A service connected disability may be a contributory cause of death if it affected a vital organ and was of itself of a progressive or debilitating nature and was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4) (1999). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, for the viewpoint of whether there were resulting debilitating effects and impairment of health to the extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (1999). A service connected disability may be a contributory cause of death if it affected a vital organ and was of itself of a progressive or debilitating nature and was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4) (1999). The appellant also suggests two theories for how the veteran's service connected disabilities contributed to the veteran's death. First, she contends that the veteran was permanently and totally disabled at the time of his death, and thus was so debilitated by a service connected disability that the condition contributed to his death. See 38 C.F.R. § 3.312 (c)(3). Second, she contends that the veteran's medication for a service connected disability, eczema, resulted in liver dysfunction and contributed to the veteran's death. The Board does not find merit in either of these contentions. At the time of his death, the veteran had compensable service connected disabilities from total arthroplasty, right knee, permanently rated as 30 percent disabling, with a temporary 100 percent rating in effect at the time of his death due to recent prosthesis surgery, and degenerative arthritis, left knee, rated as 10 percent disabling. In reviewing the record, the Board does not find any medical evidence that either of these service connected disabilities caused or contributed to the cause of his death. The left knee disability was rated the same, 10 percent, since the initial August 1989 rating decision. Thus it was static in nature. There is no evidence that the right knee disability, while it had increased in severity over the years, played any role in the veteran's death. They clearly were not the principal cause of death. Furthermore, these disabilities did not affect a vital organ or vital bodily function, but rather involved the musculoskeletal system. Thus the Board finds that these disabilities did not contribute to the veteran's death due to pancreatic cancer. See 38 C.F.R. § 3.312(c)(3) (1999). Likewise, the eczema condition was rated as noncompensable and was also static in nature. Thus, the Board finds that it was not a principle cause of the veteran's death. The appellant argues that one of the medications, ketoconazole, which the veteran took to control his eczema condition led to liver dysfunction that contributed to the cause of the veteran's death. She has submitted medication package insert material that discusses the potential side effects of use of ketoconazole, including liver dysfunction. She contends that the veteran's use of ketoconazole for his eczema condition caused such problems that VA doctors had to stop prescribing the medication to the veteran for his skin condition. A review of the evidence from VA outpatient treatment records shows that the veteran was first prescribed ketoconazole in May 1987 for extensive tinea pedis, bilaterally. The evidence also shows that in October 1987 VA doctors took the veteran off this medication after liver function test results were obtained revealing glucose of 222, alkaline phosphatase (enzyme) (Alkp) of 75, and bilirubin of 1.8. The appellant contends that this medication led to liver dysfunction and contributed to the veteran's death. However, the Board finds no evidence that the veteran had a primary liver dysfunction that contributed to his death. The only evidence of liver dysfunction is the metastasis of cancer from the veteran's pancreas to his liver. The evidence shows that the veteran's liver problem was caused by pancreatic cancer, not the 5 month use of ketoconazole 8 years prior to his death. This evidence does not support the appellant's contention regarding the treatment for the veteran's eczema and his eventual death. The medication's insert paperwork describes potential medical problems from the use of ketoconazole. There is no competent medical evidence on record from a physician in support of the appellant's contention. Thus the Board finds that this skin disability did not contribute to the veteran's death due to pancreatic cancer. See 38 C.F.R. § 3.312(c)(3) (1999). The facts before the Board, as previously discussed, do not suggest that the veteran's death was caused by a musculoskeletal condition or a skin condition, but rather by the progressive spread of cancer from his pancreas. Therefore, the Board does not find that these service connected disabilities played any role in the veteran's death. The veteran's claims file contains no medical evidence that indicates that his metastatic pancreatic cancer was related to his active service. Further, the record does not indicate that the aforementioned service connected disabilities contributed, either principally or substantially, to the veteran's death. Therefore, the Board concludes that the claim for service connection for cause of death is not plausible, and as a result is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(d) (1999). II. Entitlement to DEA Benefits. The appellant also claims entitlement to DEA benefits. For the purposes of Dependents' Educational Assistance under Chapter 35, 38 U.S.C.A., basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 C.F.R. § 3.807(a) (1999). In this case, as previously discussed, the veteran's 100 percent rating at the time of his death for right knee total arthroplasty was a temporary rating based on recent prosthesis surgery and was due to revert to a 30 percent rating in January 1996. Thus, it does not qualify as a permanent total service connected disability. The issue of entitlement to DEA depends on whether the veteran died as a result of a service connected disability. As the appellant's claim for service connection for the cause of the veteran's death is not well grounded, entitlement to DEA is also not well grounded. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. § 3.807 (1999). III. Entitlement to DIC under 38 U.S.C.A. § 1151 The appellant first claimed entitlement to DIC under 38 U.S.C.A. § 1151 in an April 1998 memorandum sent to the RO. Section 1151, as amended for claims filed on or after October 1, 1996, provides that DIC shall be awarded for the additional disability or death of a veteran if the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran, and if the proximate cause of the disability or death was the "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing hospital care, medical or surgical treatment, or examination"; or was caused by "an event not reasonably foreseeable", assuming that the disability or death was not due to the veteran's willful misconduct. 38 U.S.C.A. § 1151(a). The appellant pursues two theories for her claim that VA medical treatment contributed to the veteran's death. First, she contends that the veteran developed a liver dysfunction due to his use of the medication ketoconazole, at VA's prescription, which the veteran took to control his eczema condition led to liver dysfunction that contributed to the cause of the veteran's death. As described earlier, the appellant has submitted medication package insert material that discusses the potential side effects of use of ketoconazole, including liver dysfunction. She contends that the veteran's use of ketoconazole for his eczema condition caused such problems that VA doctors had to stop prescribing the medication to the veteran for his skin condition. As discussed, VA doctors took the veteran off this medication after liver function test results were obtained revealing high glucose levels. The appellant claims that a resultant "liver dysfunction" contributed to the veteran's death. However, the only evidence of liver dysfunction is the metastasis of cancer from the veteran's pancreas to his liver. The evidence shows that the veteran's liver problem was caused by pancreatic cancer, not the 5 month use of ketoconazole 8 years prior to his death. This evidence does not support the appellant's contention regarding the treatment for the veteran's eczema and his eventual death. The medication's insert paperwork describes potential medical problems from the use of ketoconazole, including liver problems. Potential liver problems were a foreseeable consequence of the use of this medication. Furthermore, there is no competent medical evidence on record from a physician in support of the appellant's contention that the use of ketoconazole led to a liver dysfunction contributing to the veteran's death. Therefore, the Board concludes that the appellant's claim for compensation under 38 U.S.C.A. § 1151 for the death of the veteran due to the use of VA's prescribed medication is not well grounded. The appellant also contends that the veteran's pancreatic cancer was not diagnosed and treated by VA in time to prevent his death. See 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999); 38 C.F.R. § 3.361 (1999). The evidence does not support this contention. The evidence shows that the veteran sought VA medical treatment in July 1995 for a 10 week history of chronic diarrhea. As previously described, the veteran immediately underwent extensive testing, including EGD, ERCP and colonoscopy procedures that uncovered pancreatic cancer with metastasis to the liver. There is no evidence that the veteran suffered injury or aggravation of his pancreatic cancer condition because of VA treatment that resulted in his death. See 38 U.S.C.A. § 1151 (West 1991). Furthermore, there is no medical evidence to suggest that VA should have diagnosed the cancer condition earlier, so as to provide the veteran a better chance of survival. The veteran's death certificate indicates that approximately 4 months elapsed from the time of the cancer's origin until the veteran's death. The Board finds no evidence to support the contention that the veteran's pancreatic cancer condition should have been diagnosed and treated earlier than July 1995. Thus, the Board finds that the appellant's contention that inadequate VA treatment led to the veteran's death is not well grounded. The absence of any evidence revealing that VA medical treatment for metastatic pancreatic cancer led to the veteran's death fails to satisfy the requirements of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. The same lack of evidence applies to the veteran's use of ketoconazole, prescribed by VA. Thus, the claim for DIC for additional disability or death due to VA medical treatment is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(d) (1999). III. Entitlement to DIC under 38 U.S.C.A. § 1318 38 U.S.C.A. § 1318 provides for benefits to survivors of veterans rated totally disabled at the time of death if the veteran was in receipt of, or entitled to receive, compensation for a service connected disability that was continuously rated totally disabling for at least 10 years immediately preceding death, or so rated for at least 5 years from service discharge. In Marso v. West, No. 97-2178 (U.S. Vet. App. Dec. 23, 1999), the Court decided that a survivor of a deceased veteran is eligible for DIC under § 1318(b)(1) if (1) the veteran was in actual receipt of a total disability rating for the required time period; (2) the veteran would have received a total disability rating but for clear and unmistakable error in a prior final rating or Board decision; or (3) the veteran was "hypothetically" entitled to a total disability rating for the required time period, under the limited exceptions of Wingo v. West, 11 Vet. App. 307 (1998) and Carpenter v. Gober, 11 Vet. App. 140 (1998). The Board notes that Wingo applies to situations where the veteran has never previously filed a claim for VA benefits, and Carpenter applies to claims prior to March 1992. The evidence shows that the appellant's § 1318 claim is relative to the veteran's temporary total disability for a right knee condition. Since the veteran filed a right knee claim during his lifetime, Wingo does not apply to this case. Additionally, since the appellant first requested § 1318 benefits in a July 1996 letter to the RO, Carpenter does not apply to this case either. The appellant contends that the veteran's 100 percent rating for his right knee condition at the time of his death was a permanent and total disability that contributed to his death. However, the Board notes that this rating was assigned as a temporary rating due to a recent total right knee arthroplasty, and was mandated under 38 C.F.R. § 4.71, Diagnostic Code 5055. This 100 percent rating was not permanent; it was assigned for one year, and was due to expire in January 1996, the month after the veteran's death. Because it was a temporary rating, instead of a permanent total disability continuously rated for 10 years immediately prior to death, the Board finds that this rating does not qualify the appellant for Section 1318 benefits. Furthermore, the appellant has not presented any claim of clear and unmistakable error by the RO or the Board in a prior decision. Therefore, the Board finds that the appellant is not entitled to DIC benefits under Section 1318. ORDER Entitlement to service connection for the cause of the veteran's death is denied; entitlement to DEA benefits is, therefore, also denied. Entitlement to DIC benefits under 38 U.S.C.A. §§ 1151 and 1318 is also denied. MARY GALLAGHER Member, Board of Veterans' Appeals