Citation Nr: 1335606 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-36 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for depression for accrued benefits purposes. 2. Entitlement to service connection for diabetes mellitus for accrued benefits purposes. 3. Entitlement to service connection for diabetic peripheral neuropathy for accrued benefits purposes. 4. Entitlement to service connection for diabetic nephropathy for accrued benefits purposes. 5. Entitlement to service connection for diabetic gastronitis for accrued benefits purposes. 6. Entitlement to service connection for hernia for accrued benefits purposes. 7. Entitlement to service connection for hypertension for accrued benefits purposes. 8. Entitlement to service connection for congestive heart failure for accrued benefits purposes. 9. Entitlement to service connection for chronic hay fever for accrued benefits purposes. 10. Entitlement to service connection for blindness for accrued benefits purposes. 11. Entitlement to service connection for arthritis for accrued benefits purposes. 12. Entitlement to service connection for a back disability for accrued benefits purposes. 13. Entitlement to special monthly pension. 14. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Nevada Office of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and Veteran's daughter ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from June 1967 to August 1976 and June 1983 to November 1986. He also had a period of United States Marine Corps Reserve duty from July 1991 to June 1996. He died in September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Reno, Nevada. In August 2013, the domestic partner of the Veteran who is the Custodian of the Veteran's daughter and his daughter provided testimony at a video conference hearing before the undersigned Acting Veteran's Law Judge. A transcript of this hearing is of record. By rating action dated in March 2007, service connection was denied for diabetes mellitus, depression, diabetic gastronitis, blindness, congestive heart failure, diabetic peripheral neuropathy, diabetic nephropathy, arthritis, chronic hay fever, hypertension, and hernia. In addition, service connection for a special monthly pension was denied. By rating action dated in March 2008, service connection was denied for low back pain with arthritis, erectile dysfunction, incontinence, and posttraumatic stress disorder (PTSD). By rating action dated in June 2009, service connection for PTSD was granted, and a 30 percent disability rating was assigned. Service connection for low back pain with arthritis, erectile dysfunction, and incontinence remained denied. By rating action dated in February 2010, service connection for back pain, and arthritis for accrued benefits purposes; and for the cause of the Veteran's death were denied. The Veteran's surviving daughter has filed a request to be substituted as the appellant, and filed claims for dependency and indemnity compensation (DIC) and accrued benefits in September and November 2009. Although decisions on the above matters have not been made, to facilitate proper adjudication of the claims, the Board will maintain the issues as listed above in the context of accrued benefits. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. 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 appeal is REMANDED to the RO. VA will notify the surviving spouse if further action is required. 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). REMAND Unfortunately, a remand of the issues on appeal is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the surviving child's claims so that she is afforded every possible consideration. In this regard, it appears that the appeal has been certified prematurely to the Board. The law regarding accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). Section 212 created a new statute, which provides that, if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2013). In this case, the Veteran died in September 2009 and his domestic partner on behalf of his minor daughter filed an application for DIC, death pension, and accrued benefits in September and again in November 2009. His domestic partner essentially requested that she be substituted for the Veteran's pending claims on behalf of his surviving daughter in a June 2011 statement. The RO acknowledged her request and in a deferred rating decision dated in July 2013, it was noted that the RO should develop the claims further by substituting the surviving daughter as the claimant instead of the domestic partner prior to submitting the claim to the Board. A review of the claims file, including the Veteran's Virtual VA file, fails to show that this was accomplished. Thus, as it stands, the issues are not ripe for adjudication by the Board. Thus, the RO prematurely certified the appeal to the Board. Here, the Board notes the importance of the decision on the surviving child's request for substitution. The Director of Compensation and Pension Service issued a Fast Letter in August 2010 that provided guidance on processing claims involving the substitution of parties. See Fast Letter 10-30 (Aug. 10, 2010). The letter noted that, unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any additional pertinent evidence. The letter provided guidance on specific procedures to follow, noting that any eligible survivor submitting a claim for accrued benefits will automatically be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. In addition, VA has published a proposed new regulation for inclusion in 38 C.F.R. Parts 3, 14, and 20 to address the issue even further. See 76 Fed. Reg. 8666 -8674 (February 15, 2011). Both the Fast Letter and proposed regulations indicate that this type of claim differs from an accrued benefits claim, in part, as evidence can be added to the record. In most accrued benefits cases, a decision is based on the evidence that is on file at the time of the Veteran's death. In cases involving substitution, additional evidence can be added to the file. As the Board cannot render a decision on the substitution issue in the first instance, See 38 U.S.C.A. § 7104(a) (West 2002), 38 C.F.R. § 38 C.F.R. § 20.101(a) (2013), the case must be remanded to the RO for adjudication. Here, the Board notes that the outcome of the request for substitution could affect the claims for DIC and accrued benefits. Thus, the claims for DIC and accrued benefits, based on the issues listed on the title page, should be adjudicated after the adjudication of the request for substitution. Accordingly, the case is REMANDED for the following actions: Adjudicate the appellant's request for substitution and readjudicate the issues listed on the title page. Afford the appellant all proper notices in adjudicating such claims. If any benefit sought on appeal remains denied, she and her representative must be provided with a Supplemental Statement of the Case and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals