Citation Nr: 1313696 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-02 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disability, based upon substitution of the appellant as the claimant. 2. Entitlement to death pension benefits. 3. Entitlement to service connection for cause of the Veteran's death. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1971 and from August 1973 to August 1977. He died in May 2010. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. At the time of the Veteran's death, he had perfected an appeal as to the claim of whether new and material evidence had been submitted to reopen the claim of entitlement to service connection for a low back disability listed on the first page of this decision. Following the Veteran's death, in July 2010, the appellant filed a claim based upon her status as the Veteran's surviving spouse requesting to continue the Veteran's service connection claim for a low back disability. The law provides that, upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2002). In this case, the appellant's claim to continue the Veteran's service connection claim was accepted by the RO as a request for substitution as the claimant in the claim pending at the time of the Veteran's death and the appellant's request for substitution was granted. The low back disability claim has been certified to the Board for adjudication based upon substitution of the appellant as the claimant. Concurrently, in a January 2011 decision, the RO denied the appellant's claims seeking entitlement to dependency and indemnity compensation (DIC) for cause of the Veteran's death, death pension benefits, and accrued benefits. As explained in further detail below, the appellant filed a timely notice of disagreement of the January 2011 decision; however, a statement of the case (SOC) has not been submitted addressing these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. The Board notes that a SOC is not required for the appellant's denied accrued benefits claim. Accrued benefits flow to the surviving spouse when it is determined that there are periodic monetary benefits to which a payee was entitled at his death under existing ratings or those based on evidence in the file at the date of death, and were due and unpaid. As noted above, the sole pending claim at the time of the Veteran's death was whether new and material evidence had been submitted sufficient to reopen a claim of entitlement to service connection for a low back disability. The appellant has been approved as the substitute for the Veteran's low back disability claim, and steps into his place in that claim. Therefore, entitlement to accrued benefits on that claim is moot, as the underlying claim is essentially still active as if the Veteran were alive. 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 Low back disability As discussed above, prior to his death, the Veteran perfected his appeal for whether new and material evidence had been submitted to reopen the claim of entitlement to service connection for a low back disability. In his January 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing via live videoconference at the RO. Prior to his death, he had not yet been afforded the videoconference hearing. Following his death, the appellant was contacted via a letter dated March 2013 as to whether she desired a videoconference hearing as she was the approved substitute in this appeal. She responded in April 2013 and continued the videoconference hearing request. A basic principle of veterans' law stipulates that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing. 38 U.S.C.A. § 7104 (West 2002). Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal before the Board will be granted if an appellant expresses a desire to appear in person. Additionally, electronic hearings known as videoconference hearings may be scheduled when suitable facilities and equipment are available. 38 C.F.R. §20.700(e) (2012). In the present appeal, the appellant has not withdrawn the request for a videoconference hearing. Therefore, remand is required to afford the appellant a hearing. Death pension benefits and cause of death As was described in the Introduction above, in a January 2011 rating decision, the RO denied the appellant's claims seeking entitlement to DIC for cause of the Veteran's death and death pension benefits. The appellant submitted a NOD with that decision. See the appellant's statement dated March 2011. As indicated above, the agency of original jurisdiction has not issued a SOC addressing these issues. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued to the issue that the appellant expressed disagreement with, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the appellant's claims of entitlement to death pension benefits and entitlement to service connection for cause of the Veteran's death. The appellant is advised that to continue an appeal on the issues of death pension benefits and service connection for cause of the Veteran's death, she will need to file a timely substantive appeal in response to the SOC that is issued, as these issues are separate and apart from the Veteran's already perfected appeal on his low back claim, in which she was substituted. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a videoconference hearing before a Veterans Law Judge at the RO in Oakland, California, on the issue of whether new and material evidence had been submitted to reopen the claim of entitlement to service connection for a low back disability. The appellant should be notified of the date and time of the hearing. 2. Issue a statement of the case (SOC) pertaining to the issues of entitlement to death pension benefits and entitlement to service connection for cause of the Veteran's death. In connection therewith, the appellant should be provided with appropriate notice of her appellate rights. If, and only if, the appellant files a timely substantive appeal in response to the SOC, the case must be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).