Citation Nr: 1332149	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  13-12 719	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for the Veteran's cause of death.

2.  Entitlement to an increased evaluation for a right ankle disability, currently evaluated as 20 percent disabling, for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 

INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. 

The Veteran served on active duty from December 1966 to February 1970.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the Veteran's cause of death.
 
In a March 2013 decision, the RO deferred the issue of accrued benefits.  

In a March 2013 statement of the case, the RO did not discuss the merits of the appellant's claim for accrued benefits.  Instead, the RO denied the claim on the basis that the Veteran did not have any pending claims at the time of his death.

As the Veteran died within one year after an October 2010 rating decision that awarded an increased evaluation for a right ankle disability, a claim for increase was pending at the time of his death.

A claimant who files an accrued benefits claim within one year of the Veteran's death has a valid accrued benefits claim.  38 C.F.R. § 3.1000(c).

As the appellant filed a claim for accrued benefits within one year after the Veteran's death, the claim must be determined on the merits.  See Taylor v. Nicholson, 21 Vet. App. 126 (2007).

The issue of accrued benefits has been recharacterized to comport with the evidence of record.

The appellant testified at a hearing before the undersigned Veterans Law Judge in September 2013.  A transcript of the hearing is in the Veteran's file. 

The issue of accrued benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's service-connected right ankle disability substantially contributed to his death.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013).

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The death of a Veteran will be considered service-connected when the evidence establishes that a service-connected disability contributed substantially or materially to the production of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 

In November 2010, the Veteran died during a car accident when his vehicle slid off an icy road.

At the time of his death, service connection was in effect for a right ankle disability.

A state police investigation report shows that numbness of the right foot would have hindered the Veteran's ability to maintain control of his vehicle.

The Veteran's death certificate lists numbness to right foot as a significant condition contributing to the cause of death.

Resolving all reasonable doubt in the appellant's favor as the law requires, the Veteran's right ankle disability contributed substantially to the Veteran's death.  

Service connection for the cause of death of the Veteran's death is warranted.


ORDER

Service connection for the Veteran's cause of death is granted.






REMAND

A remand is required to adjudicate the claim for increased evaluation for a right ankle disability for accrued benefits on the merits and determine whether the substitution of the appellant for the Veteran is proper.

Accordingly, the case is REMANDED for the following action:

1.  Determine whether substitution of the appellant for the Veteran is proper.

2.  Then, adjudicate the claim for an increased evaluation for a right ankle disability for accrued benefits on the merits.  If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case 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).




______________________________________________
RONALD W. SCHOLZ
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs