Citation Nr: 1311404 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 01-08 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to VA Dependency and Indemnity Compensation (DIC), pursuant to 38 U.S.C. § 1318. 3. Entitlement to DIC under 38 U.S.C. § 1151 for cause of the Veteran's death based on Department of Veterans Affairs (VA) treatment for his testicular cancer, its recurrence, or metastases. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD), testicular cancer, and lung cancer, for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The late Veteran served on active duty from February 1970 to February 1974. The appellant in the present appeal is his surviving widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim for service connection for the Veteran's cause of death. The appellant timely appealed this adverse determination. In September 2003, the appellant presented oral testimony in support of her claim at the time of a videoconference hearing before a Veterans Law Judge (VLJ) who has since retired during the pendency of the appeal. A transcript of this hearing has been associated with the claims file for review and consideration. (The appellant has been duly informed via correspondence dated January 2013, which was sent to her last known address of record that the VLJ that presided over her hearing had retired. Pursuant to 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, she was offered the opportunity to be scheduled for a new hearing before an extant VLJ; however, no timely response to the offer was received from her and thusly the Board will proceed with the adjudication of the appeal using her September 2003 hearing testimony.) In a memorandum decision of the United States Court of Appeals for Veterans Claims (Court) in March 2009, the Court vacated a December 2006 Board decision denying service connection for the Veteran's cause of death, DIC benefits under 38 U.S.C.A. § 1318, and DIC benefits under 38 U.S.C.A. § 1151 and remanded the matter to the Board for development and adjudication consistent with the Court's decision. For the reasons that will be discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and her representative if further action is required. REMAND The present claim has an extremely complicated history that requires preliminary discussion in detail. In a November 1999 rating decision, the RO denied the late Veteran's claim for service connection for PTSD, lung cancer, and testicular cancer. Although the Veteran filed a notice of disagreement with the denial of these issues, which were accordingly addressed in a December 1999 statement of the case, he ultimately perfected only the issue of entitlement to service connection for PTSD in a VA Form 9 substantive appeal filed in January 2000. Shortly afterwards, the Veteran died in March 2000, with his cause of death identified as cancer of the testes on his official death certificate. At the time of his death, the Veteran was not service connected for any disabilities. In April 2000, the Veteran's surviving widow filed a claim for service connection for DIC benefits, death pension, and accrued benefits for claims that were pending at the time of his death. As previously stated, a September 2000 rating decision denied the appellant's claim for service connection for the Veteran's cause of death. The rating decision, however, did not address the claim for DIC benefits under 38 U.S.C.A. § 1318 and 38 U.S.C.A. § 1151, and the claims for service connection for accrued benefits purposes. The appellant timely appealed this adverse determination. In December 2006, the Board determined that the appellant was not entitled to DIC benefits under 38 U.S.C.A. §§ 1310, 1318, or 1151. The Board decision also noted in its introduction that the claimant had raised several unadjudicated claims, including, inter alia, service connection for PTSD, lung cancer, and testicular cancer for accrued benefits purposes. As the agency of original jurisdiction did not adjudicate these specific claims on the merits in the context of an accrued benefits claim, they were referred to the RO for appropriate action. The appellant thereafter timely appealed the Board's denial to the Court. In a March 2009 memorandum decision, the Court determined that the Board had erred in adjudicating the claims for DIC benefits without first holding these matters in abeyance and allowing the RO to first develop and adjudicate the unaddressed claims for DIC benefits under 38 U.S.C.A. § 1151, and entitlement to service connection for PTSD, lung cancer, and testicular cancer for accrued benefits purposes, as the Court found that a favorable outcome to any of these claims would have a material impact on the outcome of the claims for DIC benefits under 38 U.S.C.A. § 1310 and 38 U.S.C.A. § 1318. Furthermore, in the event of an adverse decision regarding any of these claims, the appellant was entitled to be provided with the opportunity to appeal them and thus add these issues to the closely linked matters already on appeal. As such, the unadjudicated § 1151 and accrued benefits claims were found to be inextricably intertwined with the DIC claims in appellate status. So as to avoid piecemeal appellate adjudication of such claims in the interests of juridical efficiency, the Court vacated the December 2006 Board decision and remanded the case to the Board for appropriate development and adjudication consistent with the memorandum decision of the Court. At this point in the history of the claim, the Board notes in its review of the claims file that the agency of original jurisdiction did not yet adjudicate the issues of entitlement to DIC under 38 U.S.C.A. § 1151 and service connection for PTSD, lung cancer, and testicular cancer for accrued benefits purposes in the first instance. Notwithstanding this, after the Court remanded the case to the Board, the Board remanded the case to the RO/AMC in February 2010, identifying on the cover page of the remand that in addition to the claims for cause of death and DIC benefits under 38 U.S.C.A. § 1318, the issues on appeal also included entitlement to DIC under 38 U.S.C. § 1151, and entitlement to service connection for PTSD, testicular cancer, and lung cancer, for accrued benefits purposes. In its action paragraph, the Board remand instructed the agency of original jurisdiction to develop and "readjudicate the (aforementioned) claims. If the benefits sought on appeal remain denied, the RO/AMC should provide the appellant. . . a supplemental statement of the case." (See Board remand of February 16, 2010, page 5, action paragraph 3.) Subsequently, the only adjudicatory action performed by the RO/AMC with respect to the heretofore unadjudicated issues of entitlement to DIC under 38 U.S.C. § 1151 and entitlement to service connection for PTSD, testicular cancer, and lung cancer, for accrued benefits purposes, was to summarily deny these claims in a very brief and perfunctory manner, without any depth of consideration of the evidence, in a May 2011 supplemental statement of the case. When the Board remanded the case once again in October 2011, the RO/AMC performed an identical cursory denial of the 38 U.S.C.A. § 1151 and accrued benefits claims in an October 2012 supplemental statement of the case. The Board notes at this juncture that notwithstanding the fact that the issues of entitlement to DIC under 38 U.S.C. § 1151, and entitlement to service connection for PTSD, testicular cancer, and lung cancer, for accrued benefits purposes were not in appellate status at the time of the February 2010 Board remand, because the Board has assumed jurisdiction over these matters in its February 2010 remand and its subsequent remand of October 2011, and as the agency of original jurisdiction and the appellant are presently operating under the premise that these issues are now in appellate status, the Board cannot now divest itself of appellate jurisdiction over these matters. [See Percy v. Shinseki, 23 Vet. App. 37, 44-47 (2009): A substantive appeal is not a jurisdictional requirement. The requirement may be waived implicitly or explicitly, such as where the RO's actions indicate an appeal was perfected or that a timely substantive appeal was filed or otherwise, by action of the RO, accepted as such.] Although the issues of entitlement to DIC under 38 U.S.C. § 1151, and entitlement to service connection for PTSD, testicular cancer, and lung cancer, for accrued benefits purposes are now on appeal, the Board finds that a remand is warranted so that the agency of original jurisdiction may properly adjudicate these issues in the first instance, giving due consideration of the merits of the claims before rendering a decision. This remand is to accord due process to the claimant, as the Court recognized in its March 2009 memorandum decision that appellate adjudication of the inextricably intertwined issues of service connection for cause of death and entitlement to DIC benefits under 38 U.S.C.A. § 1318 needed to be held in abeyance pending initial adjudication of the issue of entitlement to DIC under 38 U.S.C.A. § 1151 and accrued benefits claims on the merits by the agency of original jurisdiction. The Board is accordingly bound by the Court's determinations. Based on our analysis of the claims file, we cannot concede that a proper adjudication of the § 1151 and accrued benefits claims on the merits by the RO/AMC has thus far been conducted, given the severe brevity of the RO/AMC's analysis of each of these issues in the supplemental statements of the case dated in May 2011 and October 2012. Furthermore, the regulations in 38 C.F.R. § 19.31(a) expressly state that "[I]n no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case," which is the situation in the present case. Therefore, while the Board may have appellate jurisdiction over the § 1151 and accrued benefits issues, to accord due process to the Veteran per the governing regulations and the binding determinations of the Court, the Board finds that these aforementioned matters must be remanded to the RO/AMC for adjudication in the first instance via a proper rating decision, followed by furnishment of proper notice of the determinations of the RO/AMC in this regard to the appellant. The issues of entitlement to DIC benefits under 38 U.S.C.A. § 1310 and 38 U.S.C.A. § 1318 are consequently held in abeyance pending this development. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC should adjudicate the appellant's claims of entitlement to DIC under 38 U.S.C.A. § 1151 for cause of the Veteran's death based on VA treatment for testicular cancer, its recurrence, or metastases, and entitlement to service connection for PTSD, testicular cancer, and lung cancer, in the context of a claim for accrued benefits purposes. The above adjudication should be conducted by the agency of original jurisdiction as if in the first instance, developing, as necessary, the § 1151 and accrued benefits claims. The adjudication should be presented in the claims file as a proper rating decision and the appellant and her representative should be provided with the appropriate notice of the RO/AMC's decision and her appellate rights. 2. The RO/AMC should thereafter, if necessary, readjudicate the appellant's claims of entitlement to service connection for the Veteran's cause of death and 38 U.S.C.A. § 1318 DIC benefits. 3. Thereafter, if any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case addressing the denied benefit. This supplemental statement of the case should also include any issue denied by the RO with regard to entitlement to DIC under 38 U.S.C. § 1151 and entitlement to service connection for PTSD, testicular cancer, and lung cancer, in the context of a claim for accrued benefits purposes, and after the appellant and her representative have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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). A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary of VA a concomitant duty to ensure compliance with the terms of such an order. See Stegall v. West, 11 Vet. App. 268 (1998). 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). _________________________________________________ Michael J. Skaltsounis Acting 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).