Citation Nr: 1501821 Decision Date: 01/14/15 Archive Date: 01/20/15 DOCKET NO. 12-30 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the deceased's character of discharge from military service is a bar to VA benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The deceased served on active duty from August 1969 to August 1973. He was discharged under conditions other than honorable. The deceased filed a claim for service-connection for cancer of the lungs and cancer of the brain in October 2010, and passed away later that month. The Appellant filed a Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse or Child, in November 2010. A June 2011 administrative decision by the Pension Management Center in St. Paul, Minnesota found that the deceased's discharge under other than honorable conditions is a bar to VA benefits. The Appellant filed a notice of disagreement with the determination, and a statement of the case (SOC) was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A substantive appeal was timely received. As the issue of whether the character of the deceased's discharge is a bar to benefits must be resolved before the underlying issues of service connection for lung cancer, brain cancer, and cause of death can be considered, these underlying issues will not be adjudicated at this time. The Appellant and her daughter testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2014. A transcript of that hearing is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND The Board notes that a June 2011 administrative decision found that the deceased was not eligible for VA benefits. This issue arose out of the deceased's claim for service connection for lung cancer and brain cancer, and the Appellant's subsequent filing of a VA Form 21-534, Application for DIC, Death Pension and Accrued Benefits by Surviving Spouse or Child (Application) in November 2010. The deceased passed away in October 2010, before the issuance of the June 2011 administrative decision. The law permits substitution of claimants when the original claimant dies during the pendency of the claim or appeal, on or after October 10, 2008. 38 U.S.C.A. § 5121A. Therefore, the Appellant's November 2010 Application is considered a request for substitution as well as a request for accrued benefits and service connection for the cause of death. 38 C.F.R. § 3.1010(c)(2). The claim has not been adjudicated by the AOJ on the basis of substitution, as is required by 38 C.F.R. § 3.1010(e) (effective October 6, 2014). The distinction between the two types of adjudication is significant in that unlike an accrued benefits claim, the record in a substitution claim is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. 38 U.S.C.A. § 5121A. As it would be more favorable for the Appellant to proceed on a substitution basis, the matter is remanded so that the AOJ may appropriately adjudicate the matter. The Appellant has offered additional relevant evidence in her hearing testimony as to whether the deceased's character of discharge is a bar to benefits. As this additional evidence may only be considered if the Appellant's claim goes forward on a substitution basis, the issue of whether the character of the deceased's discharge is a bar to service-connected benefits cannot be adjudicated until the AOJ addresses the matter of substitution. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, the matter must be remanded. The Board notes that, should the AOJ find that substitution is appropriate, the Appellant's hearing testimony would indicate the need for further development. The Appellant contends that the deceased's periods of AWOL were the result of posttraumatic stress disorder (PTSD) caused by the deceased's experiences in Vietnam. Her statements can reasonably be construed as an argument that the deceased's periods of AWOL should be covered by the insanity exception, by which a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). The Appellant has testified that she observed the deceased during his periods of AWOL, and that he behaved in a manner that she described as "very mental," including attempting suicide. The Appellant's hearing testimony also indicated that the deceased received mental health treatment following this suicide attempt. If the Appellant is found to be an appropriate substitute, the AOJ should attempt to obtain these treatment records upon remand, and should obtain an opinion from a VA psychiatrist as to the deceased's mental state at the time of his discharge. Regardless of whether the Appellant may proceed on a substitution basis, the Board notes that the claims file contains an October 2010 notation that treatment records from the VA Medical Center (VAMC) in Oklahoma City pertaining to the deceased are available, but were not printed due to excessive volume. These medical records have not been associated with the claims file in hard copy or as digital records. They should be so associated upon remand. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of whether the Appellant may proceed on the basis of substitution in the matter of whether the character of the deceased's discharge is a bar to service-connected VA benefits. A copy of the written notification of the determination in this regard sent to the appellant should be included in the claims folder. 2. Associate with the claims file the deceased's treatment records from VAMC Oklahoma City, to specifically include the records from May 14, 2007 to September 20, 2010, as referenced in the October 2010 notation. 3. If the Appellant is allowed to proceed on the basis of substitution, contact the Appellant and ask that she identify when the deceased received treatment at R. R. Hospital, as referenced in the May 2014 hearing transcript. After obtaining the appropriate authorization, contact R. R. Hospital, or any other treatment facility identified by the Appellant, and request treatment records related to the deceased from the time period identified by the appellant. All attempts to obtain these records must be documented in the claims file. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Appellant of the records that were not obtained (2) tell the Appellant what steps were taken to obtain them, and (3) tell the Appellant that the claim will be adjudicated without the records but that if she later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2013)). 4. If substitution is allowed, after completing the above, forward the claims file to a VA psychiatrist. The psychiatrist is requested to offer an opinion as to whether the deceased was insane at the time of his dishonorable discharge, as defined under 38 C.F.R. § 3.354(a). The purpose of the examination is to determine whether the deceased was "insane" as defined by 38 C.F.R. § 3.354(a) during the period when he committed the acts that led to his discharge from service under conditions other than honorable. The examiner is advised that 38 C.F.R. § 3.354(a) provides that an insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. The examiner is also advised that the Appellant's May 2014 testimony as to the deceased's behavior during service, including his suicide attempt, is for consideration. The examiner must provide a complete rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 5. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return it 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).