Citation Nr: 1335954 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-40 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than April 2, 1999, for the award of a total disability rating due to individual employability resulting from service-connected disability (TDIU), to include as due to clear and unmistakable error (CUE) in a July 2000 rating decision. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 3. Entitlement to service connection for the cause of the Veteran's death. 4. Entitlement to service connection for lung cancer, claimed as due to exposure to herbicides, for substitution and accrued benefits purposes. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. The Veteran died in December 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the issues on appeal, save for the earlier effective date claim, were remanded by the Board for further development in May 2012. That development having been completed, these issues are properly before the Board for disposition. The Board also notes that the May 2012 Board remand included eligibility to Dependent's Education Assistance (DEA) under Chapter 35 of Title 38 of the Unites States Code as an issue on appeal. However, it is noted that this issue was granted by the RO in March 2009, prior to the Board remand, and is therefore no longer in appellate status. While the earlier effective date claim was not identified in the May 2012 Board decision, a substantive appeal was filed for this issue in May 2013, and as such will be addressed herein. The issues of entitlement to service connection for the cause of the Veteran's death and entitlement to service connection for lung cancer, claimed as due to exposure to herbicides, for substitution and accrued benefits purposes, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Entitlement to a TDIU was granted in an unappealed July 2000 rating decision, effective April 2, 1999. 2. Due to the existence of an earlier unadjudicated informal claim for TDIU, dated in August 1997, and the fact that the schedular criteria for TDIU were met on September 18, 1998, the July 2000 rating decision's assignment of an effective date of April 2, 1999, for the grant of entitlement to TDIU, was not adequately supported by the evidence then of record, and contained an undebateable error that was outcome-determinative. 3. A TDIU rating, as of the date of this decision, had been in effect for ten years at the time of the Veteran's death. CONCLUSIONS OF LAW 1. The July 2000 rating decision contained CUE in its assignment of an effective date of April 2, 1999 for the grant of entitlement to TDIU; the criteria for an earlier effective date of September 18, 1998, for the award of a TDIU have been met. 38 U.S.C.A. § 5109A (West 2002 & Supp. 2013); 38 C.F.R. § 3.105 (2013). 2. The requirements for Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22, 3.102, 3.159 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appellant's claims for entitlement to an earlier effective date for TDIU, and for DIC benefits under 38 U.S.C.A. § 1318, are granted herein. Therefore, any deficiency with regard to notice or development for these issues is harmless and non-prejudicial. II. Earlier Effective Date In a July 2000 rating decision, the Veteran was awarded a TDIU, effective April 2, 1999. The appellant contends that an earlier effective date is warranted for the grant of TDIU, to include on the basis that CUE exists in the July 2000 rating decision. As a preliminary matter, in determining whether a claimant is entitled to a TDIU rating, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant may be unemployed or has difficulty obtaining employment is not enough for an award of TDIU. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. A total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). Substantially-gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975): A veteran's service-connected disabilities, alone, must be sufficiently severe to produce the veteran's unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, the reasonable doubt will be resolved in favor of the appellant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). The Board also notes that the appellant is precluded from seeking entitlement to an earlier effective date for the grant of TDIU on a non-CUE basis. The Veteran did not disagree or initiate an appeal following the July 2000 rating decision that awarded TDIU, and the rating decision has become final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. Accordingly, for the appellant to prevail in her claim for an earlier effective date, the July 2000 rating decision assigning an effective date of April 2, 1999 for the award of TDIU must contain CUE. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE is essentially failure to apply correct statutory or regulatory provisions to correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Moreover, merely to aver that CUE occurred is insufficient. Fugo, 6 Vet. App. at 43. A CUE claim must specify the bases for CUE; mere disagreement with how the facts were weighed and evaluated "can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 44. A CUE analysis is limited to a review of the evidence of record as of the issuance of the challenged decision. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). In this case, the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, was received on January 10, 2000. The document indicated that the Veteran became too disabled to work on April 1, 1999. TDIU was then granted in a July 2000 rating decision effective April 2, 1999, the date from which the Veteran was unable to maintain an occupation due to his service-connected disabilities. At that time, he was service connected for posttraumatic stress disorder (PTSD) rated at 50 percent, gastroesophageal reflux disease (GERD) rated at 30 percent, degenerative joint disease of the cervical spine, rated at 30 percent, residuals of gunshot wounds to the left shoulder (2) and left chest (1), rated at 20 percent each, a third gunshot wound to the left shoulder rated at 10 percent, tinnitus rated at 10 percent, and residuals of a left rib fracture, a scar, residuals of a left arm injury, and hearing loss, all non-compensably rated. The appellant contends that an effective date earlier than April 2, 1999, is appropriate for the grant of TDIU, as an earlier claim for the benefit was pending at the time of the July 2000 rating decision. In this case, the evidence supports the appellant's contention. On August 14, 1997, a statement from the Veteran's co-worker, R.J.J., indicated that he witnessed a radical decrease in the Veteran's ability to perform the highly-physical duties associated with his occupation, and that he witnessed the Veteran in such severe pain in his chest, back, neck, arm, and hand, that the Veteran was forced to cease working. It was noted that these pains were occurring more frequently, and that there was hardly a day that passed when those pains did not occur. The co-worker concluded that the Veteran should be considered for "total disability." While the Veteran had increased rating claims pending at that time, it does not appear that this statement was addressed by the RO in conjunction with those claims. Instead, the Board finds that the August 1997 lay statement amounted to an informal claim for TDIU, which was pending at the time of the July 2000 rating decision, and not addressed by the RO. VA regulations at the time of the August 1997 submission decision defined an informal claim as any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA from a Veteran, his representative, a Member of Congress, or some person acting as next friend of a claimant (emphasis added). Here, the record is unclear whether the Veteran submitted this statement himself or the co-worker submitted it on his behalf. However, based on the language of this provision, in either event, this document could constitute an informal claim. It was also noted that such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (1996). The Federal Circuit has held that where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). Hence, evidence of unemployability submitted during the course of another claim could constitute an informal claim for TDIU. See also Norris v. West, 12 Vet. App. 413, 417 (1999) (stating that the Board must "review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims"). The Board finds that the August 1997 statement from the Veteran's co-worker constitutes evidence of unemployability, and is therefore considered an informal claim for TDIU. Id. As noted above, the RO eventually granted TDIU, although it did not assign higher ratings for the Veteran's pending increased rating claims following the receipt of the August 1997 letter. See Supplemental Statement of the Case (SSOC), Rating Decision , October 1998. However, the RO did not address the pending claim for TDIU in either of these decisions, nor does it appear that the statement was considered within the context of any pending claim decided therein. As such, while the 1998 decisions clearly awarded less than a 100 percent for those pending claims, the Board finds that the October 1998 SSOC and rating decision are not deemed to have denied the pending claim for entitlement to TDIU in accordance with the Federal Circuit's decision in Deshotel v. Nicholson, 457 F. 3d 1258 (Fed. Cir. 2006) (if the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied), or the Court's decision in Ingram v. Nicholson, 21 Vet. App. 232, 248 (2007) (where the RO assigns less than 100 percent for the service-connected disability upon which a TDIU claim is predicated, a claimant is understood to have "received general notice of the denial of [his] TDIU claim."), as the statement was not addressed by the RO, and the letter contained information that was pertinent to other service-connected issues whose outcomes were not pending at the time of the August 1997 communication. The "implicit denial rule" provides that, in "certain circumstances," a claim for benefits is deemed to have been denied, and thus finally adjudicated, even if the RO did not expressly address that claim in its decision. See Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The "certain circumstances" are when a reasonable person would understand from a decision that his request for benefits, not explicitly addressed in the decision, nevertheless implicitly was adjudicated and denied by that decision. Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010) (holding that the key inquiry is whether sufficient notice has been provided so that a veteran would know, or reasonably can be expected to understand, that he will not be awarded benefits for the disability asserted in his pending claim); Ingram (holding that a reasonably-raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated, or an explicit adjudication of a subsequent "claim" for the same disability); see also Adams, 568 F.3d at 961 (holding that the "implicit denial rule" is, at bottom, a notice provision). As defined by the Court's jurisprudence, application of the implicit denial doctrine turns on whether the Veteran had reasonable notice that his claim for benefits was denied. See Ingram; see also Adams. In this case, neither the 1998 SSOC nor rating decision informed the Veteran that entitlement to a TDIU was denied, nor was such issue discussed by the RO in any way. While VA's Rating Schedule in effect at the time certainly considered the effects of an appellant's disability on his employability, as noted above, the letter from the Veteran's co-worker addressed service-connected issues which were not in appellate status at the time the communication was authored. Therefore, the RO's finding that no more than a 20 percent rating was warranted for a cervical spine disability, or residuals of gunshot wounds, those decisions failed to indicate that the RO considered this evidence supporting the Veteran's industrial inadaptability. As such, the Board finds that the Veteran was not provided reasonable notice that a claim for a TDIU had been denied. A reasonable person would not have recognized, in this instance, that a 100 percent rating and a TDIU were effectively the same benefit, and that the continuance of 20 percent ratings for a small fraction of the Veteran's then-service-connected disabilities represented a denial of entitlement to a TDIU. Accordingly, the implicit denial doctrine is inapplicable in this case, and the Board finds that the 1998 SSOC and rating decision did not implicitly deny the Veteran's claim for entitlement to a TDIU. The July 2000 rating decision assigned an effective date of April 2, 1999, for TDIU, not because it was the earliest date that the Veteran met the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a), but rather because that was the date that the Veteran was forced to ultimately cease working. However, as pointed out by appellant's attorney, the Veteran's service-connected PTSD, effective from 1998, rendered him permanently unemployable. See Psychiatric Progress Note, April 2000. The assignment of effective dates for increased evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Under these provisions, if unemployability due to service-connected disabilities occurred within one year prior to the date of claim, TDIU is effective as of the date unemployability was "factually ascertainable." If unemployability occurred more than one year prior to the claim, the TDIU is effective the date of claim. 38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). In the July 2000 rating decision, the RO noted that the Veteran's VA Form 21-8940, received in January 2000, indicated that he had last worked full-time in April 1999. However, the letter from the Veteran's co-worker indicated that the Veteran was unable to appropriately perform his occupational tasks in 1997. In addition, he first met the threshold schedular criteria for a grant of TDIU under 38 C.F.R. § 4.16(a) on September 18, 1998. Coupled with the statement from the Veteran's VA psychiatrist, it is therefore factually ascertainable that the Veteran became unemployable prior to 1999, the year in which he finally stopped working altogether. On this point, the Board notes that, when looking to the standard of whether a particular job is realistically within the physical and mental capabilities of the claimant, the Board finds that determination does not bar an earlier effective date for TDIU, and that the Veteran's service-connected disabilities, alone, and specifically his PTSD and gunshot wound residuals, may have been sufficiently-severe to produce unemployability prior to the actual date in which he left his employment. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Even assuming the Veteran were able to find a sedentary job for which he could be trained, the Board points out that the Veteran would have faced significant workplace hurdles due to his PTSD, as confirmed by his VA provider at the time. In summary, the Board finds that the August 1997 submission from the Veteran's co-worker was an informal claim for TDIU. Further, the RO's subsequent denials of three increased rating claims did not constitute an implicit denial of that TDIU claim, as the August 1997 statement specifically noted physical difficulties faced by the Veteran which were not in appellate status at that time. Finally, the Board finds that evidence which existed at the time of the July 2000 rating decision, which assigned an effective date of April 2, 1999, for the award of TDIU, supports the appellant's contentions that the Veteran not only met the schedular criteria for an award of TDIU prior to that date, but also that the evidence of record indicates that the Veteran was rendered unemployable at the time his award for PTSD was effective, on September 18, 1998. While the Board has also considered entitlement to an even earlier effective date based on extraschedular considerations, although it is undebateable that the Veteran met the threshold schedular requirements as of September 18, 1998, it is not undebateable that his orthopedic disabilities warranted referral to the Director of Pension and Compensation prior to September 18, 1998. As discussed above, CUE is essentially failure to apply correct statutory or regulatory provisions to correct and relevant facts. Here, the Board finds that the failure to consider the Veteran's August 1997 informal TDIU claim is the kind of error that compels the Board to find in favor of the appellant in this case, as reasonable minds could not differ that the result would have been manifestly different but for the error. See Fugo. Moreover, the appellant's claim properly specified the bases for CUE, and her claim did not amount to a mere disagreement with how the facts were weighed and evaluated at the time of the July 2000 rating decision. The Board's finding is based solely on the evidence of record at the time of the July 2000 decision, which included an informal TDIU claim, coupled with the fact that the Veteran met the schedular criteria for TDIU consideration at that time, and evidence from the Veteran's VA provider indicating the Veteran's inability to maintain substantial employment from September 18, 1998. See Pierce. Given the law in effect at the time of the July 2000 rating decision, and the evidence of record at that time, the Board finds that it was error to the assign April 2, 1999, as the effective date for the grant of TDIU benefits. CUE has been shown in the July 2000 rating decision, and the claim for an earlier effective date of September 18, 1998, for the grant of TDIU is therefore warranted. III. Dependency and Indemnity Compensation (DIC) Where a veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 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" is a veteran who dies not as the result of the Veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason was not in receipt of but would have been entitled to receive compensation (but for the receipt of retired or retirement pay), at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the Veteran's separation from service. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The total rating may be schedular or based on unemployability. Id. In this case, the Veteran was in receipt of a TDIU at the time of his death in December 2008. Prior to this Board decision, entitlement to that benefit dated only from April 2, 1999. However, the Board has granted the appellant's claim for an earlier effective date for an award of a TDIU, and a new effective date of September 18, 1998, has been assigned (the date entitlement to a TDIU was demonstrated following an informal claim in August 1997). As such, the Veteran was in receipt of a TDIU at the time of his death for more than 10 years, and entitlement to DIC benefits under 38 U.S.C.A. § 1318 is therefore warranted. ORDER Entitlement to an effective date of September 18, 1998, for the award of a total disability rating due to individual employability resulting from service-connected disability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The St. Louis, Missouri RO has adjudicated and denied the appellant's claims for cause of the Veteran's death, and for service connection for lung cancer, claimed as due to exposure to herbicides, for accrued benefits purposes. When a Veteran dies, an eligible person to process any pending claims may be substituted for the Veteran. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A - allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. In this case, the Veteran had appeals pending at the time of his death. The Veteran died in December 2008, and the Veteran's widow (the appellant) submitted a VA Form 21-534 in January 2009, within one year after the date of the Veteran's death. Under 38 U.S.C.A. § 5121 and the proposed rule, the Board finds that the St. Louis RO construed the widow's VA Form 21-534 as an inferred request to file a claim for accrued benefits. However, the RO has not addressed the widow as being substituted for the Veteran, and instead, adjudicated the claims solely for accrued benefits purposes pursuant to 38 U.S.C.A. § 5121. Accrued benefits are benefits to which the Veteran was entitled at the time of his or her death under an existing rating, or based on the evidence actually or constructively in the claims file on the date of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000 (2013); Hayes v. Brown, 4 Vet. App. 353 (1993). Accrued benefits are payable to a Veteran's surviving spouse, or other qualified claimant, if no surviving spouse exists. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary, and claims regarding substitutions of claimants in the case of death of a claimant. U.S.C.A. §§ 5121, 5121A (West 2002 & Supp. 2013). When adjudicating accrued benefits claims, only the evidence record at the time of death may be considered as the basis for a determination on the merits of the claim. When a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. Thus, it is to the appellants' benefit to have the claim adjudicated as a substitute claimant pursuant to the newly enacted 38 U.S.C.A. § 5121A, rather than as the RO adjudicated them pursuant to 38 U.S.C.A. § 5121. Therefore, any eligible survivor submitting a claim for accrued benefits will be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. Here, the Board finds that the RO has framed the issue of service connection, and thereafter adjudicated the claim, only for purposes of accrued benefits. By characterizing the pending service connection claim on appeal as a claim for accrued entitlement benefit, without further noting that the appellant was also entitled to pursue her claims for substitution, that aspect of the appellant's claim was not fully considered, notwithstanding the fact that the RO's consideration of the claim. The Board has therefore recharacterized the issue on appeal, and will remand the claim for further adjudication for both substitution and accrued benefits purposes. Finally, the Board notes that the appellant's claim of entitlement to service connection for cause of the Veteran's death is inextricably intertwined with the issue addressed above, as the crux of that claim is closely-linked to her service connection claim. As such, the Board finds that remanding this issue for contemporaneous consideration is warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that, where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: Consider the claim for entitlement to service connection for lung cancer based on all of the evidence of record for both substitution and accrued benefits purposes, and then reconsider the claim for entitlement to service connection for cause of the Veteran's death. If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case and allowed an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs