Citation Nr: 1536672 Decision Date: 08/27/15 Archive Date: 09/04/15 DOCKET NO. 10-49 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD), for accrued benefits purposes or on the basis of substitution. 2. Entitlement to service connection for a brain hemorrhage, to include as secondary to service-connected PTSD, for accrued benefits purposes or on the basis of substitution. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1967. The Veteran passed away in April 2009, and the appellant is his surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2008 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Montgomery, Alabama and Milwaukee, Wisconsin, respectively. Although the appellant requested a hearing before the Board in connection with her appeal, and was scheduled for a videoconference hearing in March 2014, she failed to appear for the scheduled hearing without explanation. She has not requested that the hearing be rescheduled; therefore, the hearing request is considered withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a December 2008 rating decision, the RO granted the Veteran's claim for entitlement to service connection for PTSD, and awarded a 30 percent rating, effective January 29, 2008. The RO also denied entitlement to service connection for a brain hemorrhage and a skin disorder. The claims file reflects that the Veteran then filed a notice of disagreement. The original notice of disagreement which was filed with VA is not in the claims file; however, a February 2009 letter from the RO acknowledges receipt of the Veteran's notice of disagreement. The appellant later provided a copy of the notice of disagreement, which appeals the assignment of the initial rating for PTSD and the denial of the claim for entitlement to service connection for a brain hemorrhage. In April 2009, before a statement of the case could be issued, the Veteran passed away. In May 2009, the appellant filed a VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse). In an August 2009 rating decision, the RO denied service connection for the cause of the Veteran's death and entitlement to accrued benefits. In December 2009, the appellant submitted a request for substitution, asking to continue the Veteran's appeal of his claims. In March 2010, the appellant filed a notice of disagreement to the denial of her claim for accrued benefits. In December 2010, the RO issued a statement of the case addressing the claims for entitlement to an initial rating greater than 30 percent for PTSD and entitlement to service connection for a brain hemorrhage. It is unclear from the statement of the case whether the issues were considered as accrued benefits claims or based upon substitution. In December 2010, the appellant perfected her appeal. In November 2013, the RO issued the appellant a supplemental statement of the case. The supplemental statement of the case did not cite nor provide any discussion of the laws and regulations regarding substitution, but indicated that the claim for entitlement to an initial rating greater than 30 percent for PTSD was decided "based on substitution." The RO did not indicate that the claim for entitlement to service connection for a brain hemorrhage was considered "based on substitution." No further discussion regarding the appellant's request for substitution appears of record. The law permits substitution of claimants when an original claimant dies during the pendency of the claim or appeal, on or after October 10, 2008. 38 U.S.C.A. § 5121A (West 2014). The appellant filed a VA From 21-534 within one year of the Veteran's death. VA Form 21-534 is considered a request for substitution. 38 C.F.R. § 3.1010(c)(2) (effective October 6, 2014). Although the RO noted in its November 2013 supplemental statement of the case that the issue of entitlement to an initial rating greater than 30 percent for PTSD was considered "based on substitution," the record does not reflect that a formal determination has been made as to whether the appellant is a proper claimant for substitution. 38 C.F.R. § 3.1010(e) requires the agency of original jurisdiction to decide all requests to substitute in the first instance. 38 C.F.R. § 3.1010(e) (effective October 6, 2014). The claims file does not show that a decision on substitution has yet been made by the RO. Determination of whether the appellant can substitute for the Veteran on the issues of entitlement to an initial rating greater than 30 percent for PTSD and entitlement to service connection for a brain hemorrhage is inextricably intertwined upon the issue of whether substitution of the appellant for the Veteran is proper. Accordingly, the issue of entitlement to accrued benefits must be deferred pending resolution of the issue of substitution. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO should adjudicate the issue of substitution in the first instance, that is, determine whether the appellant is a proper substitute claimant for the Veteran for the purpose of processing to completion the claims for entitlement to an initial rating greater than 30 percent for PTSD and entitlement to service connection for a brain hemorrhage. 2. If the request for substitution is allowed, the RO should complete any development deemed necessary and readjudicate the claims based upon substitution. If the benefits sought on appeal are not granted, the appellant and her representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for appellate review. 3. If the request for substitution is denied, the appellant must be notified of the decision and of her appellate rights. Then, the RO should readjudicate the claims for entitlement to an initial rating greater than 30 percent for PTSD and entitlement to service connection for a brain hemorrhage for accrued benefits purposes. If the benefits sought on appeal are not granted, the appellant and her representative should be furnished a supplemental statement of the case and afforded reasonable opportunity to respond before the record is returned to the Board for appellate review. 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 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).