Citation Nr: 1303011 Decision Date: 01/29/13 Archive Date: 02/05/13 DOCKET NO. 12-17 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for right arm fracture residuals, for substitution and accrued benefits purposes. 2. Entitlement to service connection for left arm fracture residuals, for substitution and accrued benefits purposes. 3. Entitlement to service connection for hypertension, for substitution and accrued benefits purposes. 4. Entitlement to service connection for bladder neck contracture with distended bladder and transurethral resection of the prostate and bladder neck with possible carcinoma of the prostate and nephrectomy (kidney condition claim), for substitution and accrued benefits purposes. 5. Entitlement to service connection for malnutrition residuals, for substitution and accrued benefits purposes. 6. Entitlement to an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm, and entitlement to a rating in excess of 20 percent for that disability, for substitution and accrued benefits purposes. 7. Entitlement to a rating in excess of 10 percent for service-connected right lower extremity cold injury residuals, for substitution and accrued benefits purposes. 8. Entitlement to a rating in excess of 10 percent for service-connected left lower extremity cold injury residuals, for substitution and accrued benefits purposes. 9. Entitlement to accrued benefits based on money owed the Veteran at the time of his death, for substitution and accrued benefits purposes. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from November 1940 to September 1945. The Veteran died in December 2011. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The St. Paul, Minnesota RO has adjudicated appellant's claims for dependency and indemnity compensation (DIC) and death pension, and is in the process of developing a claim for service connection for cause of the Veteran's death. The issues of entitlement to special monthly compensation based on the need for regular aid and attendance and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for substitution and accrued benefits purposes have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The St. Paul, Minnesota RO has adjudicated appellant's claims for dependency and indemnity compensation (DIC) and death pension, and is in the process of developing a claim for service connection for cause of the Veteran's death. In a letter to the appellant, dated in February 2012, the appellant was advised by the St. Paul RO that it had transferred the appellant's accrued benefit claims for processing by the Albuquerque, New Mexico RO since the claims were pending at that RO at the time of the Veteran's death. In the letter, the appellant was specifically informed that she was "entitled to file this accrued claim and substitute that accrued claim for the BVA appeal." The fact that appellant was deemed eligible to pursue her accrued claims as a substitute claimant is further confirmed in a memorandum to the file, dated in February 2012, which indicates that the RO was sending this memorandum to the Albuquerque RO as an indication that a substitution is valid and the Albuquerque RO had jurisdiction. When a Veteran dies, an eligible person to process any pending claims when a Veteran dies to completion. 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 2011, and the Veteran's widow submitted a VA Form 21-534 in December 2011, 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. Paul RO properly construed the widow's VA Form 21-534 as an inferred request to substitute. However, the Albuquerque RO has not addressed the widow as being substituted for the Veteran, but 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 (2012); 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. 2012). When adjudicating the 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 Albuquerque RO has framed the issues and adjudicated the claims only for purposes of accrued benefits. By characterizing the claims on appeal as claims 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 claims was not fully considered, notwithstanding the fact that the RO's consideration of the claims may have been somewhat broader than necessary for accrued benefits claims. The Board has therefore recharacterized the issues on appeal and will remand the claims for further adjudication of all the claims for both substitution and accrued benefits purposes. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. Consider all of the claims on appeal based on all of the evidence of record for both substitution and accrued benefits purposes. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).