Citation Nr: 1329865 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-09 424 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to substitution as claimant with respect to the issue of whether a June 2002 rating decision in which the RO denied service connection for posttraumatic stress disorder (PTSD) contained clear and unmistakable error (CUE). 2. Whether new and material evidence to reopen a claim for service connection for PTSD has been received, for accrued benefits purposes. REPRESENTATION Appellant represented by: C. Kempton Letts, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active military service from December 1963 to June 1971, which was characterized as honorable, and from April 1979 to May 1981, which was characterized as other than honorable. The Veteran died in June 2009; the appellant is his widow. The appeal to the Board of Veterans' Appeals (Board) arose from September 2010, October 2010, and a March 2012 rating actions, In the September 2009 and October 2010 rating decisions, the RO, inter alia, denied the appellant's request to reopen the previously denied claims for service connection for PTSD. In December 2009 and December 2010, the appellant filed notices of disagreement (NODs) with both decisions. A statement of the case (SOC) was issued in March 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. In the March 2012 rating decisions, the RO, inter alia, denied the appellant's request to substitute as a claimant on the issue of whether a June 2002 rating decision that denied service connection for PTSD contained CUE. In April 2012, the appellant filed an NOD. An SOC was issued in October 2012, and the Veteran filed a substantive appeal (via a VA Form 9) in November 2012. In the March 2012 SOC, the RO reopened and addressed the claim for service connection for PTSD, on the merits, for accrued benefits purposes. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, the issue has been characterized, accordingly, as reflected on the title page. In August 2012, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; and, in June 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. The Board observes that the March 2012 statement of the case also addressed the issues of entitlement to service connection for chronic low back pain, benign prostatic hypertrophy and stomach polyps, all for accrued benefits purposes. Further, the appellant's April 2012 substantive appeal indicated that she wished to appeal all of the issues listed in the statement of the case. However during the August 2012 DRO hearing as well as during the June 2013 Board hearing, the appellant through her representative, indicated that she wished to only pursue the issues pertaining to service connection for PTSD. Hence, the only claims remaining on appeal are set forth on the title page. In August 2013, the undersigned granted the motion of the appellant's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. With the exception of the transcript for the Board hearing, a review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision on the issue of entitlement to substitution as claimant with respect to the issue of whether a June 2002 rating decision in which the RO denied service connection for PTSD contained CUE is set forth below. The request to reopen the claim for service connection for PTSD is addressed in the remand following the order; this matter is being remanded to the RO. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided on appeal have been accomplished. 2. In a June 2002 rating decision, the RO denied a claim for service connection for PTSD; although notified of the denial, the Veteran did not initiate an appeal. 3. At the time of the Veteran's death, no claim alleging CUE in the June 2002 rating decision in which the RO denied service connection for PTSD was pending before the RO. CONCLUSIONS OF LAW 1. The June 2002 rating decision in which the RO denied service connection for PTSD is final. 38 U.S.C.A. § 7105(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The claim for substitution of the appellant for the Veteran, with respect to the issue of whether a June 2002 rating decision in which the RO denied service connection for PTSD contained CUE, is without legal merit. . 38 U.S.C.A. § 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In connection with issue herein decided, the appellant and her attorney have been notified of the reasons for the denial of the claim, and have been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). II. Analysis The issue before the Board is whether the appellant is entitled to substitution as claimant with respect to the issue of whether the June 2002 rating decision in which the RO denied service connection for PTSD contained CUE. In her December 2010 notice of disagreement, the appellant, through her representative, stated that she wished to be substituted as the claimant to continue the Veteran's appeal pursuant to the 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008. Congress enacted the 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. This change in law permits an eligible person to process any pending claims when a Veteran dies prior to completion. A request for substitution must be filed with the RO from which the claim originated not later than one year after the date of the Veteran's death. As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." Substitution differs from a traditional "accrued benefits" claim in that additional evidence and argument may be added to the claims file following the death of the veteran. Cf. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. A request for substitution must be filed not later than one year after the date of a veteran's death and, as provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . .." Id.; 38 U.S.C.A. § 5121A. On the other hand, the law and regulations governing traditional claims for accrued benefits provide that, upon the death of a veteran, a survivor claiming entitlement may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2012). Considering applicable legal authority in light of pertinent evidence. the Board finds that the appellant may not be substituted as claimant with respect to the issue of whether a June 2002 rating decision in which the RO denied service connection for PTSD contained CUE. In the instant case, the Veteran filed a claim for service connection for PTSD in November 2000, which the RO denied in the June 2002 rating decision. Although the Veteran was notified of the denial and his appellate rights, he did not initiate an appeal within one year. In fact, the next document contained in the claims file is a September 2003 statement from the Veteran, more than a year after the prior rating decision, seeking to file a claim for nonservice-connected pension. As such, unless an exception to finality applies, the RO's June 2002 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The appellant is now attempting to allege CUE in the June 2002 rating decision in an attempt to overcome the finality of that decision. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. However, in the instant case, the Veteran did not file a claim alleging CUE in the June 2002 rating decision at any time prior to his death. The evidence shows that in September 2003, he filed a claim for nonservice-connected pension, which was denied by the RO in March 2004, and then the next filing submitted by the Veteran is a March 2009 statement in which he sought to reopen his claim for PTSD. Significantly, nothing in this statement gives any indication that the Veteran was alleging CUE in the prior final June 2002 rating decision. The Veteran himself characterized the claim as one to reopen. The statement does not even mention the June 2002 rating decision, much less allege any error therein. The Veteran subsequently died prior to the adjudication of this claim. Thus, as there was no pending claim alleging CUE in the June 2002 rating decision at the time of the Veteran's death, the appellant cannot be substituted as the claimant with respect to such claim. The regulations clearly state that substitution of a claimant is only allowed on claims pending at the time of death. The Board understands the appellant's contentions. However, the statutory provisions governing substitution for accrued benefits purposes are clear and specific, and the Board is bound by such provisions. Where, as here, the law and not the evidence is dispositive, the claim must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim of entitlement to substitution as claimant with respect to the issue of whether a June 2002 rating decision in which the RO denied service connection for PTSD contained CUE, is denied. REMAND The Board's review of the claims file reveals that further RO action on the claim remaining on appeal is warranted. Initially, the claims file shows that the Veteran was receiving disability benefits from the Social Security Administration (SSA) for his psychiatric disability. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities, and to associate all records and/or responses received with the claims file. Further, while this matter is on remand, to ensure that all due process requirements are met, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. As a final preliminary matter, the Board notes that, although the RO has apparently granted the appellant's request for substitution in connection with the request to reopen, and other pending claims, for accrued benefits purposes, no letter documenting such approval has been associated with the paper claims file or the electronic (Virtual VA) folder. Hence, to ensure that the record is complete, on remand, a copy of the RO's determination granting the request for substitution on specific claims, to include the request to reopen, should be associated with the claims file. Accordingly, this matter is hereby REMANDED for the following actions: 1. Associate with the paper claims file the determination granting the appellant's request for substitution, particularly as regards the remaining request to reopen the previously denied claim for service connection for PTSD. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the appellant and her attorney a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the appellant and her attorney an appropriate SSOC that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs