Citation Nr: 1237337 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 07-19 830 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine THE ISSUES 1. Entitlement to recognition of the appellant as a substituting party. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, for accrued benefits purposes. 3. Entitlement to service connection for claimed macular degeneration, for accrued benefits purposes. 4. Entitlement to service connection for claimed arteriosclerotic heart disease, for accrued benefits purposes. 5. Entitlement to service connection for arthritis, for accrued benefits purposes. 6. Entitlement to service connection for claimed upper extremity peripheral neuropathy, for accrued benefits purposes. 7. Entitlement to service connection for claimed lower extremity peripheral neuropathy, for accrued benefits purposes. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to October 1968 in the Navy. He had additional service in the Navy Reserve from October 1968 to August 1971, and in the Army National Guard from December 1974 to December 1977, with verified periods of active duty for training (ACDUTRA) in August 1975, May 1976 and August 1977. The Veteran died in October 2010. The appellant is his widow. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the RO. In January 2011, prior to rendering a final decision in the appeal, the Board was notified that the Veteran had died in October 2010. Accordingly, in February 2011, the Board dismissed the Veteran's appeal as to the pending claims of service connection on the basis of having no jurisdiction by virtue of his death. In March 2011, the appellant submitted a statement indicating her request to substitute as a claimant in place of the Veteran. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of service connection for type 2 diabetes mellitus, to include as due to herbicide exposure; arteriosclerotic heart disease, to include as secondary to type 2 diabetes mellitus; arthritis; peripheral neuropathy of the upper extremities, to include as secondary to type 2 diabetes mellitus; peripheral neuropathy of the lower extremities, to include as secondary to type 2 diabetes mellitus; arthritis, to include as secondary to type 2 diabetes mellitus; and macular degeneration, to include as secondary to type 2 diabetes mellitus, for accrued benefits purposes are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT After the deceased Veteran's appeal was dismissed due to the lack of jurisdiction, the appellant, who is the surviving spouse of the Veteran, filed her request for substitution within one year of his death in October 2010. CONCLUSION OF LAW The criteria for the substitution of the appellant in place of the now-deceased Veteran in this case of the previously dismissed appeal involving claims of service connection for accrued benefits purposes have been met. 38 U.S.C. § 5121A (West 2002 & Supp. 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the substitution claim on appeal because the appeal turns on a matter of law and not on the underlying facts or development of the facts. Manning v. Principi, 16 Vet. App. 534, 542 (2002). In Manning, the United States Court of Appeals for Veterans Claims (Court) found that VCAA could have no effect on appeals that were decided on an interpretation of the law as opposed to a determination based on facts. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Substitution The Board's February 2011 dismissal of the Veteran's appeal did not affect the right of an eligible person to file a request to be substituted as the claimant for purposes of processing the previously submitted claim of service connection to completion. A request to be substituted as the claimant upon death of a claimant may be authorized under 38 U.S.C. § 5121A, which was enacted on October 10, 2008, as part of the Veterans' Benefits Improvement Act of 2008, Public Law No. 110-389, § 212, 122 Stat. 4145, 4151. Pursuant to 38 U.S.C. § 5121A(a), if a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title [38 U.S.C.A. § 5121(a)] may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for purposes of processing the claim to completion. The law further explains that all claims for substitution of claimant require that the veteran have died on or after October 10, 2008, the date in which the law was enacted. Paragraph (c) under § 212 of Public Law No. 110-389 specifically states that section 5121A under title 38 U.S.C., "shall apply with respect to the claim of any claimant who dies on or after the date of the enactment of this Act." In this case, the Veteran died in October [redacted], 2010. In February 2011, the Board dismissed his pending claims of service connection for type 2 diabetes mellitus, to include as due to herbicide exposure; arteriosclerotic heart disease; arthritis; peripheral neuropathy of the upper extremities; peripheral neuropathy of the lower extremities; arthritis; and macular degeneration. In March 2011, VA received notice from the claimant that she was seeking substitution under 38 U.S.C. § 5121A. In July 2012, the RO determined that the claimant was the surviving spouse of the Veteran and was a dependent eligible to seek substitution regarding his pending claims. In the Veteran's September 2005 claim of service connection, he reported being married to the claimant in February 2002, more than one year prior to his death in October 2010. Furthermore, as the claimant filed her application for substitution less them one year after the Veteran's death, the Board finds she has met the requirements for substitution in the case of death under 38 U.S.C. § 5121A (West 2002 & Supp. 2010). This should based of consideration of the claims pending at the time of the Veteran's death on the basis of the appellant's entitlement to accrued benefits. ORDER As the appellant is recognized as the substitute for the deceased Veteran in the matters of service connection for type 2 diabetes mellitus, to include as due to herbicide exposure; arthritis; and for residual disability caused by type 2 diabetes mellitus, to include arteriosclerotic heart disease, peripheral neuropathy of the upper and lower extremities, arthritis and macular degeneration for accrued benefits purposes, the appeal to this extent is allowed subject to further action as discussed hereinbelow. REMAND The appellant, via substitution, contends that the Veteran's diagnosed type 2 diabetes mellitus was caused by exposure to defoliant spraying while he was serving in the Maine National Guard in Gagetown, New Brunswick, Canada. The appellant now asserts that the Veteran had suffered residuals disability including diabetes mellitus, arteriosclerotic heart disease, peripheral neuropathy of the upper and lower extremities, arthritis, and macular degeneration due to this claimed exposure. A review of the Veteran's service personnel records confirms that the Veteran had ACDUTRA with the Maine National Guard at the Canadian Forces Base in Gagetown, New Brunswick, Canada, in August 1975. In October 2006, the RO requested assistance from the U.S. Army and Joint Services Records Research Center (JSRRC) to verify whether the Veteran was exposed to herbicides, specifically AGENT PURPLE, during ACDUTRA at the Canadian Forces Base in Gagetown, New Brunswick, Canada, with the National Guard. In an October 2006 response, the United States Armed Services Center for Research of Unit Records (USASCRUR) was unable to verify testing or storage of any chemicals at the base in Gagetown, New Brunswick, Canada in August 1975. However, USASCRUR noted that basic desiccants, Agent Orange, Agent Blue and various other agents were tested at the base from December 1966 to October 1967. During his lifetime, the Veteran submitted various internet articles to support his contention that he was exposed to herbicides at the Canadian Forces Base in Gagetown. The articles included timelines of events, including applications of chemical herbicides from 1952 to 1984, and references to environmental assessments of dioxin levels at Gagetown in the mid-1980's. Based on the evidence of record, the Board finds that further development is necessary to determine whether the Veteran was exposed to herbicides in connection with his service at the Canadian Forces Base in Gagetown, New Brunswick, Canada. Additionally, a review of the record shows the most recent VA treatment records associated with the claims file are dated in January 2006, over four years prior to the Veteran's death. Under Bell v. Derwinski, 2 Vet. App. 611 (1992), any VA treatment records that have been generated, whether or not filed in the veteran's claims folder, are in the constructive possession of the Board and must be considered. See Crippen v. Brown, 9 Vet. App. 412 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the appellant in order to obtain copies of any outstanding records referable to VA treatment received by the Veteran for the claimed type 2 diabetes mellitus, arteriosclerotic heart disease, peripheral neuropathy of the upper and lower extremities, arthritis and macular degeneration prior to his demise. If VA is unsuccessful in providing any medical records, it must inform her and provide her an opportunity to submit copies of the outstanding medical records. 2. In addition, the RO should afford the appellant an opportunity to provide further information referable to the Veteran's reported exposure to herbicides during ACDUTRA in August 1975. 3. After completing all indicated development, the RO should readjudicate the claims of service connection based on entitlement to accrued benefits in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant should be furnished a fully responsive Supplemental Statement of the Case (SSOC) that addresses the claims for accrued benefits purposes and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 2011). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs