Citation Nr: 1308746 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 05-41 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the Veteran's bilateral peripheral vascular disease with above left knee amputation, claimed as secondary to service-connected diabetes mellitus, for substitution or accrued benefits purposes. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1963 to February 1969. Unfortunately, the Veteran passed away in August 2011, during the pendency of an appeal of the above issue; the appellant in this case is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 and February 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent parts, denied service connection for the Veteran's bilateral peripheral vascular disease with above the left knee amputation, claimed as secondary to service-connected diabetes mellitus. The Veteran timely appealed those decisions. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2007; a transcript of that hearing is associated with the claims file. The Board initially remanded this claim in January 2008 for further development; during remand development, the Veteran died in August 2011. The appellant filed for accrued benefits and Death and Indemnity Compensation (DIC) in August 2011, which was adjudicated in a June 2012 rating decision. The case was returned to the Board in November 2011, at which time it was remanded for clarification as to whether the Veteran was a substituted party or not under 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). The case has been returned to the Board at this time for further appellate review. Please note 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 again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the November 2012 remand, the Board asked for a rating decision to be issued adjudicating whether the appellant met the basic eligibility requirements for substitution as to the above claim, and if so, seeking information as to whether she wished to waive that right to substitute or wished to proceed on a substitution basis. The RO/AMC was then to readjudicate the claim after the above clarification had occurred. The Board notes that no rating decision is of record which adjudicates the appellant's basic eligibility for substitution as requested by the Board, though it appears that her eligibility was conceded in a Deferred Rating Decision in November 2012. Notification of that does not appear to have been provided to the appellant. Instead, it appears that in December 2012, the appellant submitted a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, which indicated that she was the surviving spouse who wished to substitute as the claimant in the pending claim of service connection for bilateral peripheral vascular disease with above the left knee amputation, to include as on a secondary basis. The RO/AMC the issued the appellant a December 2012 supplemental statement of the case, in which the RO/AMC appears to concede that the appellant is eligible for substitution, then readjudicated the claim on an accrued benefits basis at the same time. Particularly, the Board notes the following: it [was] now duly acknowledged that [the August 2011 claim for DIC and accrued benefits was] definitively construed as a claim for substitution and was previously give due credence in the Supplemental Statement of the Case issued to you in June of 2012. Despite this acknowledgement, there remains no compelling evidence to show that entitlement to service connection . . . is warranted . . . . [and,] entitlement for accrued benefits cannot be established. The Board therefore notes that it appears the RO/AMC substituted the appellant in this case, but then-without any notification of such-readjudicated her claim in the same document. As the Board discussed in its previous remand, the fundamental difference between being eligible for substitution and being an accrued benefits claimant is that the appellant who is substituted has the ability to submit more information and evidence, as well as address notice or due process defects in the same manner as if the original claimant were still alive, where an accrued benefits claimant cannot do any of those things. In this case, while it appears that the RO/AMC substantially complied with the November 2012 remand in a shortcut-fashion, but that such shortcut compliance has failed to provide the appellant in this case of: (1) notification that she was indeed a substituted party, and (2) allow her to submit any additional evidence or argument regarding the claim prior to readjudication. The Board notes that the RO/AMC's failure to properly notify the appellant that she was being substituted as the claimant in this case amounts to a due process error, which forces the Board to remand this claim at this time, so that the appellant may be properly notified of her status as a substituted party and allowed to participate in the adjudication of her claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant appropriate notice with respect to her status as a substituted party in place of the Veteran for the claim of service connection for the Veteran's bilateral peripheral vascular disease with above left knee amputation, claimed as secondary to service-connected diabetes mellitus. Such notice should: (a) Inform the appellant that she has been substituted as the claimant; (b) Inform her of all of her rights as a substituted party, including informing her that she may submit additional evidence to substantiate her claim, and (c) Should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. After the appellant has been properly informed of her status as a substituted party and the appropriate amount of time for response has expired, or she has waived the remaining period, the RO/AMC should readjudicate the appellant's claim of service connection for the Veteran's bilateral peripheral vascular disease with above left knee amputation, claimed as secondary to service-connected diabetes mellitus. The RO/AMC should note that since the appellant is a substituted party, the accrued benefits standard used in the prior Supplemental Statements of the Case is not the correct standard for which to be adjudicating this claim. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).