Citation Nr: 1603100 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 14-14 887 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for liver cancer for accrued benefits purposes. 2. Entitlement to service connection for prostate cancer for accrued benefits purposes. 3. Entitlement to service connection for mental disorder, to include posttraumatic stress disorder (PTSD) for accrued benefits purposes. 4. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to January 1972 and from October 1972 to December 1974. The Veteran died in March 2012 and the appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The jurisdiction of the case now resides with the Roanoke, Virginia RO. The appellant initially requested a hearing in connection with her appeal. However, in a written statement received by VA in August 2015, the appellant withdrew her request for a hearing. See 38 C.F.R. § 20.704(e) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND When a veteran dies, an eligible person may be substituted for the Veteran to process any pending claims. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A - allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. In February 2012, VA received the Veteran's claims for service connection for liver cancer, prostate cancer, bilateral hearing loss, PTSD, and hepatitis. Unfortunately, the Veteran died in March 2012-prior to adjudication of the claims. In April 2012, within one year of the Veteran's death, VA received a 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), dated and signed by the appellant. An August 2012 VA letter noted the new law regarding substitution and that the appellant should submit any information or evidence. In response, the appellant submitted another VA Form 21-534 in April 2013 with a copy of a marriage certificate and death certificate. The Board notes that a claim for accrued benefits and/or Dependency and Indemnity Compensation is interpreted as a request for substitution. The July 2013 rating decision, in pertinent part, denied the issues of entitlement to service connection for liver cancer for accrued benefits purposes, entitlement to service connection for prostate cancer for accrued benefits purposes, and entitlement to service connection for mental disorder for accrued benefits purposes. Neither the July 2013 rating decision nor the March 2014 Statement of the Case addressed whether the appellant may be substituted in the place of the Veteran regarding the pending claims for service connection. There is no other separate determination of record regarding substitution. Accrued benefits are benefits to which the Veteran was entitled at the time of his or her death under an existing rating, or based on the evidence actually or constructively in the claims folder on the date of death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Accrued benefits are payable to a veteran's surviving spouse, or other qualified claimant, if no surviving spouse exists. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary, and claims regarding substitutions of claimants in the case of death of a claimant. 38 U.S.C.A. §§ 5121, 5121A (West 2014). When adjudicating accrued benefits claims, only the evidence of record, or constructively of record, at the time of death may be considered as the basis for a determination on the merits of the claim. When a properly qualified substitute claimant continues the pending claim in the footsteps of the veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. Thus, it is potentially to the appellant's benefit to have the claims on appeal adjudicated as a substitute claimant pursuant to 38 U.S.C.A. § 5121A, rather than pursuant to 38 U.S.C.A. § 5121. Any eligible survivor submitting a claim for accrued benefits will be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. See also Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010) (an accrued-benefits claimant has two options: request substitution or pursue a claim for accrued benefits); Reliford v. McDonald, 27 Vet. App. 297, 303-04 (2015) (the appellant has the right to choose to waive substitution). Accordingly, the Board remands this case for the AOJ to determine whether the appellant is an eligible claimant for substitution regarding the Veteran's claims for service connection for liver cancer, service connection for prostate cancer, and service connection for mental disorder, to include PTSD. The Board defers adjudication of the claims for service connection for accrued benefits purposes as the issues are inextricably intertwined with the substitution issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Likewise, adjudication of the issue of entitlement to service connection for the cause of the Veteran's death must also be deferred. Id. Regarding the claim for service connection for the cause of the Veteran's death, the AOJ did not request a medical opinion. Generally, in a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); see also 38 U.S.C.A. § 5103A(a) (West 2014). While the medical evidence in this case is limited and the appellant only offered her own statements that the Veteran was diagnosed with hepatitis B shortly after his active service, the Board finds that it would not be unreasonable to request a medical opinion in this case. Id. Accordingly, on remand, the appellant must be provided a VA opinion regarding the claim for service connection for the cause of the Veteran's death. Accordingly, the case is REMANDED for the following action: 1. The AOJ must adjudicate the issue of substitution of the appellant in the first instance concerning the claims for service connection for liver cancer, service connection for prostate cancer, and service connection for mental disorder, to include PTSD. A copy of the determination should be included in the claims folder. 2. If the AOJ determines that the appellant is eligible for substitution, send the appellant a VA notice letter advising her of her status as a substitute claimant, explaining the difference between accrued benefits and substitution, and the evidence necessary to substantiate the claims for service connection for liver cancer, service connection for prostate cancer, and service connection for psychiatric disability, to include PTSD. The letter must also include release forms and the appellant must be requested to complete and return a release form for each private health care provider to obtain relevant records. 3. If and only if the AOJ determines that the appellant is a properly substituted claimant, request a medical opinion from a suitably qualified examiner regarding the claims for service connection for liver cancer, prostate cancer, and mental disorder, to include PTSD. The claims folder must be made available for review and the examiner must note that a review of the claims folder was completed. Following the review, the examiner must respond to the following: *Is it at least as likely as not (50 percent probability or higher) that the claimed liver cancer was caused or otherwise related to active service, to include exposure to herbicides? *Is it at least as likely as not (50 percent probability or higher) that the claimed prostate cancer was caused or otherwise related to active service, to include exposure to herbicides? *Is it at least as likely as not (50 percent probability or higher) that the claimed mental disorder, to include PTSD, was caused or otherwise related to active service? Rationale must be offered for any opinion reached. 4. Thereafter, readjudicate the claims for service connection. 5. Following completion of the above, request an opinion from a suitably qualified VA examiner regarding the cause of the Veteran's death. The claims folder must be made available to the examiner and the examiner must indicate that the review was completed. Following review of the claims folder, respond to the following: *Is it at least as likely as not (50 percent or more probability) that the cause of the Veteran's death, hepatocellular carcinoma due to hepatitis B, is related to active service? *If the Veteran was service-connected for a disability, is it at least as likely as not (50 percent or more probability) that the cause of the Veteran's death, hepatocellular carcinoma due to hepatitis B, is proximately due to or chronically aggravated by, a service-connected disability? In rendering the requested opinions, the examiner must note whether a service-connected disability contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death. See 38 C.F.R. § 3.312(c)(1) (2015). Additionally, if the examiner determines that a service-connected disability or disabilities affected a vital organ, the examiner must address whether the disability or disabilities caused debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. See 38 C.F.R. § 3.312(c)(3) (2015). Rationale must be provided for all opinions given. 6. After completion of the above, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the appellant with a supplemental statement of the case. Following time for a response, the appeal should be returned to the Board for review. 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). _________________________________________________ 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) (2015).