Citation Nr: 1547007 Decision Date: 11/05/15 Archive Date: 11/13/15 DOCKET NO. 10-11 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to recognition of J.S.C. as a child of the Veteran for the purpose of substitution. (The issues of entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of substitution and entitlement to recognition of K.R.K.B. as a child of the Veteran for the purpose of substitution, are the subject of two separate decisions.) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1974. The Veteran died in August 2011. In October 2011, the appellant filed an Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) on behalf of the minor child, J.S.C. The appellant is the mother of the former minor child, J.S.C. She remains involved in this matter although the child has reached the age of majority since October 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future review of this case should take into consideration the existence of this electronic record. Prior to his death in August 2011, the Veteran initiated the appeal process regarding the claims of service connection for posttraumatic stress disorder (PTSD) and an acquired psychiatric disorder other than PTSD (claimed as a nervous condition to include depression), and increased ratings for duodenal ulcer and low back pain with a November 2007 Notice of Disagreement. In the March 2010 Substantive Appeal (via VA Form 9), the Veteran explicitly limited the appeal to the issues of service connection for PTSD and an acquired psychiatric disorder other than PTSD. As the issues of increased ratings for duodenal ulcer and low back pain were not perfected for appellate review by the Veteran following the February 2010 Statement of the Case, they are not in appellate status, and are not before the Board. See 38 U.S.C.A. § 7105(a) (West 2014). In short, the only appeals pending at the time of the Veteran's death are service connection for PTSD and service connection for an acquired psychiatric disorder other than PTSD. In an April 2015 rating decision, the RO denied service connection for the cause of the Veteran's death and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The appellant was informed of this decision in an April 2015 notice letter. The appellant has not initiated an appeal as to these issues; however, the one-year period to submit a Notice of Disagreement has not yet lapsed. As such, these issues are not in appellate status, and are not before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The pending issues of service connection for PTSD and an acquired psychiatric disorder other than PTSD (perfected by the Veteran as discussed above) are deferred to allow for the AOJ to make an actual adjudication as to the threshold question of the former minor child, J.S.C.'s, eligibility to be substituted in the Veteran's appeals that were pending at the time of his death; that is, whether the former minor child, J.S.C., is a "child" of the Veteran. Under the provisions of 38 U.S.C.A. § 5121A, when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A substitution in case of death of a claimant who dies on or after October 10, 2008). VA published a proposed rule on substitution on February 15, 2011. See 76 Fed. Reg. 8,666 -01 (Feb. 15, 2011) (Proposed Rule). Generally, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of a veteran should file a request for substitution with the VA RO from which the claim originated. See 38 C.F.R. § 3.1010(e) (2015) (the agency of original jurisdiction (AOJ) will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board). The purpose of this administrative procedure is to insure that an appellant is a qualified "accrued benefits claimant" so as to be eligible for substitution. However, under the proposed rule, VA would treat qualifying death claims (for example, a VA Form 21-534) as requests to substitute. Id. (proposed to be codified at 38 C.F.R. § 3.1010(c)(2)). The appellant's VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), was received by the RO in October 2011. Thus, under 38 U.S.C.A. § 5121A and the proposed rule, the Board will construe the appellant's VA Form 21-534 as an inferred request to substitute. To be considered a child for purposes of accrued benefits, a person must be: 1) unmarried and under the age of eighteen years; 2) before attaining the age of eighteen years, permanently incapable of self-support; or, 3) after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A) (West 2014); 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2015). The person must also be a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member at the time of the veteran's death, or an illegitimate child (in certain circumstances). 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.1000(d)(2). Before the Board may evaluate the pending issues on appeal on the merits, the threshold question of whether the former minor child, J.S.C., is eligible for substitution as a "child" of the Veteran must be addressed. This threshold question is analogous to various threshold or eligibility determinations in Veterans Law that are required before reaching the underlying merits of a case. See generally Sandoval v. Brown, 7 Vet. App. 7, 9 (1994) (holding that a veteran's spouse must supply proof of marital status in order to achieve claimant status); Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, the evidence must demonstrate qualifying service and character of discharge)); Schaper v. Derwinski, 1 Vet. App. 430 (1991) and Narron v. West, 13 Vet. App. 223 (1999) (holding that the question of validity of a debt is a threshold determination that must be made prior to a decision on a claim of entitlement to waiver of recovery of an indebtedness); Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996) (holding that the question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying service connection claim on its merits). In this case, the RO did not explain how the former minor child, J.S.C., meets the criteria under 38 U.S.C.A. § 5121A(a)(2)(B) for substitution; therefore, a remand is warranted to address the evidence and for adjudication on the threshold question of whether the former minor child, J.S.C., is a "child" of the Veteran. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the question of whether the former minor child, J.S.C., is eligible for substitution on the basis of being a child of the Veteran for the purpose of processing to completion the appeals of service connection for PTSD and an acquired psychiatric disorder other than PTSD. Explain what evidence supports a finding that the former minor child, J.S.C., is a child of the Veteran so as to be eligible for substitution under 38 U.S.C.A. § 5121A(a)(2)(B), and associate the evidence with the record, if not already of record. 2. Only after the action in paragraph 1) has been undertaken, follow the notification procedure under 38 C.F.R. § 19.100 for simultaneously contested claims. Note: The appellant, on behalf of J.S.C., is not considered a contesting claimant until the action in paragraph 1) is complete and only if recognition of J.S.C. as a child of the Veteran for the purpose of substitution is denied. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ J. PARKER 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) (2015).