Citation Nr: 1611513 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 14-12 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for colon cancer. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to November 1983. The Veteran's DD 214 indicates that he had nine years, five months and one day of foreign service. He received awards to include, but not limited to, the Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm and the Vietnam Service Medal with three Bronze Service Stars. The Veteran is deceased, and the appellant is his surviving spouse. A February 2016 letter indicates that the appellant is the appropriate substitute for claims pending at the time of the Veteran's death. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in Philadelphia, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's death certificate indicates that he passed away in April 2012 from colorectal cancer. The Veteran was not service-connected for any disability prior to his death. The appellant claims that the cancer is related to Agent Orange exposure during active service. The Veteran's DD 214 reflects receipt of the Vietnam Service Medal, but does not confirm active duty in the Republic of Vietnam; service personnel records have not been associated with the claims file. Additionally, she indicates in the VA Form 9 dated January 2014 that it was never determined where the initial tumor began so it's possible the original cancer was in an area which would lead to presumptive service connection on the basis of Agent Orange exposure. Thus, on remand the AOJ must obtain the Veteran's service personnel records. Additionally, there is no medical opinion concerning a nexus; thus, the Board must remand for an opinion if Agent Orange exposure is conceded. A living person who would be eligible to receive accrued benefits due to a claimant under 38 U.S.C. § 5121(a) may also be eligible to be substituted as the claimant for purposes of processing a pending claim to completion. See 38 U.S.C. § 5121A. Unlike accrued benefits claims, which are limited to the evidence of record at the time of the Veteran's death, a substitute claimant is able to submit additional evidence to be considered by VA that was not of record at the time of the Veteran's death. In this case, the Veteran filed a March 2012 claim for service connection for colon cancer, which was pending at the time of his death. The Veteran died in April 2012. In October 2012, the appellant filed a claim for dependency and indemnity compensation, which is deemed to include a request for substitution for the pending service connection claim. See 38 C.F.R. § 3.1010(c)(2). Per the Board's request, in a February 2016 letter the AOJ notified the appellant that she had been substituted for the Veteran regarding the pending claim. To date, however, there has been no adjudication of the claim, and the Board cannot make a decision on this matter in the first instance; thus the AOJ must adjudicate the claim and provide the appellant the opportunity to appeal if the claim is denied. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 38 C.F.R. § 20.101(a) (2015). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's service personnel records. 2. Adjudicate the claim for entitlement to service connection for colon cancer. The appellant should be notified of this decision and her appellate rights. 3. If it is determined that the Veteran was exposed to Agent Orange, arrange for review of the Veteran's claims folder by a VA physician to determine the nature and etiology of the Veteran's terminal cancer, including whether it is at least as likely as not (50 percent probability or greater) related to service, to include as being due to in-service herbicide exposure. The examiner must review the entire claims file, and should provide a complete rationale for any opinion expressed. 4. Then, the RO or the AMC should readjudicate the claims on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). These claims 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). _________________________________________________ THOMAS J. DANNAHER 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).