Citation Nr: 1300882 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 05-35 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to substitution as claimant due to the death of the Veteran. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney Appellee #1 (S.L.D.) represented by: Robert V. Chisholm, Attorney Appellee #2 (G.C.S.) represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to February 1971. He died in July 2010. The appellant is the Veteran's son and has a filed a claim for substitution as claimant under 38 U.S.C.A. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which awarded service connection for paranoid schizophrenia and assigned an initial, 100 percent rating, effective June 7, 2004. In August 2009, the Veteran filed a notice of disagreement (NOD) as to the effective date assigned to his award of service connection; he perfected an appeal for this issue in October 2009. The Veteran subsequently passed away in July 2010, prior to the Board making a decision on the merits of his claim. In October 2010, the Board dismissed the Veteran's appeal, noting that such dismissal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. In December 2010, the appellant submitted a claim for death benefits, including accrued benefits, which, per VA policy, was interpreted as a request for substitution. Thereafter, in May 2012, the RO notified the appellant that he was found not eligible for substitution with respect to the issue of entitlement to an effective date earlier than June 7, 2004 for the grant of service connection for paranoid schizophrenia. The appellant filed an NOD as to this determination; a statement of the case (SOC) was sent to him in September 2012, and a substantive appeal was received later that same month. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision regarding the claim for substitution as claimant due to the death of the Veteran is set forth below. The remaining matter, entitlement to accrued benefits, is addressed in the remand following the order and is being REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. At the time of the Veteran's death, the appellant was over the age of twenty-three; there is no evidence that he became permanently incapable of self-support prior to attaining age eighteen. 2. The appellant does not contend, and the evidence does not indicate, that he bore any expense for the Veteran's last sickness and burial. CONCLUSION OF LAW As a matter of law, the criteria for substitution of appellant for the Veteran in any claim pending as of the date of his death have not been met. 38 U.S.C.A. § 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The VCAA is not applicable to cases where the law is determinative of the issue on appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As this is the case here, the Board finds the provisions of the VCAA are not applicable to the present appeal and it is not required to address efforts to comply with the VCAA. Notwithstanding the fact that the VCAA is not controlling in these matters, the Board has reviewed the case for purposes of ascertaining that the appellant has had a fair opportunity to present arguments and evidence in support of his claim. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. II. Contested Claim Procedures VA rules include special procedural requirements for simultaneously contested claims. Here, the appellant's siblings have also filed for substitution as claimant due to the death of the Veteran; thus, these procedures are for application. See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2012). Review of the claims file, however, reveals that the applicable contested claims procedures have not been followed. Specifically, the RO never provided the interested parties (the appellant and appellees) with appropriate notices and determinations related to the contested claim. Despite this procedural error, the Board nevertheless finds that it may proceed with a determination on this appeal at the present time. In this regard, the Board notes that none of the contested claimants are eligible for the benefit sought - i.e., substitution for the Veteran in any claim pending as of the date of his death. Given these circumstances, there is no detriment to any claimant in deciding his or her appeal without notifying all interested parties of each claimant's contentions and/or reasons for denial. Moreover, as the same attorney represents all of the claimants in this matter, he is clearly aware of actions taken with respect to the other claimants. III. Analysis The Veteran passed away in July 2010. At the time of his death, he had a claim pending for an effective date prior to June 7, 2004, for an award of service connection for paranoid schizophrenia. Thereafter, in December 2010, the appellant (his son) submitted a request to continue the Veteran's appeal pursuant to the newly-enacted Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). Under 38 U.S.C.A. § 5121A, an eligible person may request to substitute as claimant for a veteran following his or her death for the purpose of processing any pending claims to completion. Substitution differs from a traditional "accrued benefits" claim in that additional evidence and argument may be added to the claims file following the death of the veteran. Cf. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A request for substitution must be filed not later than one year after the date of a veteran's death and, as provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . .." Id.; 38 U.S.C.A. § 5121A. Pertinent to this appeal, 38 U.S.C.A. § 5121(a) provides that any VA benefits accrued but unpaid at the date of the veteran's death will go first to the veteran's spouse, second to the veteran's children, and third to any dependent parents. See also 38 C.F.R. § 3.1000(a)(1). Additionally, accrued benefits may be paid as may be necessary to reimburse any individual who bore the expense of the veteran's last sickness or burial. 38 C.F.R. § 3.1000(a)(4). For purposes of this section, "child" is defined as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A) (West 2002); 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2012). Further, to be eligible for accrued benefits, an individual must meet the definition of "child" at the time of the veteran's (or payee's) death. 38 C.F.R. § 3.1000(d)(2). In the present case, there is no dispute that the appellant is the Veteran's biological son. According to his birth certificate, however, the appellant was born in 1985. Thus, as of the date of the Veteran's death, he was over the age of 23. The appellant has never contended, and the evidence does not suggest, that he became permanently incapable of self support prior to the age of 18. Thus, the appellant is not a "child" under 38 U.S.C.A. § 5121 and therefore does not meet the criteria as a valid substitute claimant for the Veteran. The Board acknowledges the appellant's assertions that he is entitled to substitution as claimant on the basis that the Veteran is entitled to an earlier effective date of April 17, 1973, and that as of such date he was a "child." However, as noted above, the pertinent regulation expressly states that the individual seeking benefits must meet the definition of "child" at the time of the veteran's (or payee's) death. 38 C.F.R. § 3.1000(d)(2). As this is not the case, the appellant is not entitled to substitution as a child. The appellant also may not substitute as claimant for the Veteran as an individual who bore the expense of the Veteran's last sickness or burial. See 38 C.F.R. § 3.1000(a)(4). The Board notes that the appellant has never contended that he incurred any of the Veteran's last expenses and, in fact, the record contains a claim for burial benefits from the Veteran's sister in which she indicates that no one has paid the balance of his burial expenses. There is also a receipt for the Veteran's burial from the funeral home and, pertinent to this appeal, it appears to be addressed to the Veteran's sister, not the appellant. In sum, insofar as the appellant does not meet the criteria as a person who would be eligible to receive accrued benefits due to the Veteran under section 5121(a), he is not eligible to be substituted as claimant for the Veteran in any claim pending as of the date of his death. See 38 U.S.C.A. § 5121A. As such, his claim for substitution is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to substitution as claimant due to the death of the Veteran is denied. REMAND In addition to filing for substitution as claimant due to the death of the Veteran, in December 2010, the appellant filed for accrued benefits. By August 2011 letter, the RO denied appellant's claim for accrued benefits. Thereafter, in September 2011, the appellant submitted a timely notice of disagreement (NOD) with the August 2011 decision. Neither the claims file nor the Virtual VA file includes a statement of the case (SOC) on this issue, and there is no indication in the record that the appellant has withdrawn the appeal on this issue. In a case in which an appellant has expressed disagreement in writing with a decision by an agency of original jurisdiction, and the agency of original jurisdiction failed to issue a SOC, the Board should remand the matter for appropriate action. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this issue must be remanded for issuance of an SOC. After the RO has issued the SOC, the claim should be returned to the Board only if the appellant perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: The RO should undertake all actions required by 38 C.F.R. § 19.26, including issuance of an SOC on the issue of entitlement to accrued benefits, if not already accomplished or the appeal withdrawn, so that the appellant may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. This issue should only be returned to the Board if a timely substantive appeal is submitted. 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. 2012). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs