Citation Nr: 1513823 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 13-06 537A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for erectile dysfunction, for accrued benefits purposes. REPRESENTATION Appellant represented by: James M. McElfresh II, Agent ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. He died on March [redacted], 2013. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The claims file is now entirely contained in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). In an October 2014 letter, the Board notified the appellant that she had been scheduled for a November 2014 Board hearing via videoconference. Thereafter, that same month, the appellant replied that she no longer wanted a Board hearing. The request is thus considered withdrawn. 38 C.F.R. § 20.704. In October 2011, the Veteran claimed service connection for erectile dysfunction and applied to reopen previously denied claims of service connection for pancreatic cancer and a psychiatric disorder. The RO denied these claims in May 2012, and the Veteran filed his notice of disagreement in June 2012. Subsequently, in March 2013, the RO granted service connection for mood disorder (with a rating of 30 percent, effective September 22, 2011); denied service connection for erectile dysfunction; and denied the petition to reopen the previously denied claim of service connection for pancreatic cancer. VA received the Veteran's substantive appeal on March 7, 2013, two days before his unfortunate death. On March 26, 2013, VA received a claim for DIC from the appellant, the Veteran's widow. See document dated May 30, 2013, in Virtual VA, for March 2013 DIC claim. Subsequently, in a December 2013 rating decision, the RO granted accrued benefits by reason of service connection for pancreatic cancer as the Veteran's cause of death and, in a December 2013 Supplemental Statement of the Case, denied accrued benefits by reason of service connection for erectile dysfunction. Insofar as the current appeal consists of an accrued benefits claim, the Board notes that a living person who would be eligible to receive accrued benefits due under 38 U.S.C.A. § 5121(a) may also be eligible to be substituted as the appellant for purposes of processing the claim to completion. 38 U.S.C.A. § 5121A. In the absence of a specific request to substitute, VA treats qualifying death claims (for example, a VA Form 21-534) as requests to substitute. 38 C.F.R. § 3.1010(c)(2)); VA Fast Letter 10-30 (August 10, 2010) (amended April 3, 2013). The appellant, however, may waive the opportunity to substitute. See VA Fast Letter 10-30; Reliford v. McDonald, No. 13-3048, slip op. at 7 (Vet. App. March 20, 2015). Unlike accrued benefits claims that are limited to the evidence of record at the time of the Veteran's death, a substitute claimant would be able to submit additional evidence that was not of record at the time of the claimant's death. In this case, although the appellant did not file a claim seeking "substitution" with respect to the Veteran's claims pending at the time of his death, she did file her DIC claim in March 2013, less than one month after the Veteran's death, and thus appears to meet the qualifications to be substituted as the claimant with regard to these claims. Nevertheless, it appears that the RO has not made an initial determination as to the appellants eligibility as a substitute. Therefore, the issue of whether the appellant's claim for DIC should be construed as a claim for substitution as to the Veteran's claim of service connection for erectile dysfunction, has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. As the issue of accrued benefits is inextricably intertwined with the issue of a possible substitution, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As stated above, prior to adjudicating the issue of accrued benefits, the RO should have considered whether a claim for substitution would be more appropriate in this case. If substitution is deemed appropriate, the appellant should be provided adequate notice and the opportunity to develop the claims prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. After determining whether the appellant is eligible for substitution and providing written notice of that decision to the appellant, and provided that the appellant has not waived her opportunity to substitute, properly develop and adjudicate any substitution claims. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. (CONTINUED ON NEXT PAGE) 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). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Eric S. Leboff 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).