Citation Nr: 1301255 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-20 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to January 1969. The Veteran died in June 2010; the appellant is his surviving spouse. This matter initially came to the Board of Veterans' Appeals (Board) from a rating decision mailed in April 2007 of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to a TDIU. In an August 2009 decision, the Board denied entitlement to a TDIU. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2010 Court Order, the Board's August 2009 decision was vacated due to the Veteran's death in June 2010, as a case or controversy no longer remains when a veteran dies absent a motion to substitute by an appropriate party. See Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994); see also Phillips v. Shinseki, 581 F.3rd 1358, 1363 n.1 (Fed. Cir. 2009). There had been no motion to substitute at that time. In January 2011, the Board dismissed the Veteran's claim for a TDIU due to his death. Thereafter, the appellant requested to be substituted as the appellant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A (West 2002 & Supp. 2012). A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant..." In June 2012, the RO notified the appellant that her status as a substituted claimant had been recognized and approved. Accordingly, the appellant is substituted. In January 2011, the appellant revoked representation of Calvin Hansen, Attorney-at-Law. In January 2011, the appellant submitted a VA Form 21-22, appointing the Military Order of the Purple Heart (MOPH) as her representative. In August 2012 correspndence from MOPH, it was indicated that they would be unable to provide representation as it is the policy of MOPH not to accept representation subsequent to the filing of a notice of disagreement. In September 2012, the Board sent correspondence to the appellant informing her of her representative options; however, to date, she has not responded. The Board notes that in an April 2011 rating decision, entitlement to service connection for the cause of the Veteran's death was denied. The Virtual VA claims folder does not contain a notice of disagreement, thus this issue is not in appellate status. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During the Veteran's lifetime service connection was in effect for the following disabilities: idiopathic thrombocytopenic purpura, cured by splenectomy, evaluated as 30 percent disabling; and thrombophlebitis, right lower extremity, varicose veins, right leg, evaluated as 20 percent disabling. The combined rating is 40 percent. The Veteran asserted that he was unable to secure gainful employment due to his service-connected disabilities. See 38 C.F.R. § 4.16(b). In February 2011, the appellant submitted documentation pertaining to deep vein thrombophletitis (DVT) risks. Such evidence must be considered in readjudicating the claim for a TDIU. See 38 C.F.R. § 19.9, 19.31(b)(1) (2012). In April 2011, the Veteran's treatment records from The Nebraska Medical Center were associated with the Virtual VA claims folder dated from November 2009 and May 2010. Such evidence must be considered in readjudcating the claim for a TDIU. Id. In April 2011 corrspondence from the appellant contained in the Virtual VA claims folder she indicated that the Veteran died at the Grand Island VA Medical Center (VAMC), which is part of the VA Nebraska-Western Iowa Health Care System. The May 2009 Supplemental Statement of the Case (SSOC) only considered VA treatment records dated through January 30, 2009. Updated records must be associated with the claims folder or with the Virtual VA claims folder for the period January 31, 2009 to June 25, 2010, and considered in readjudicating the claim for a TDIU. Id.; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder or the Virtual VA folder the Veteran's treatment records from the VA Nebraska-Western Iowa Health Care System from January 31, 2009 to June 25, 2010. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. After completion of the above, the RO/AMC should readjudicate entitlement to a TDIU, to include pursuant to § 4.16(b). Such readjudication should include consideration of VA treatment records, the evidence received in February 2011 (documents from appellant) and April 2011 (treatment records from The Nebraska Medical Center), and any other submissions of the appellant. If the benefit sought is not granted in full, the appellant should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).