Citation Nr: 1633731 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 14-23 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date prior to June 9, 1989 for the assignment of a 100 percent schedular evaluation for a psychiatric disorder, with anxiety reaction and depression, including based upon Clear and Unmistakable Error (CUE) in an April 1992 rating decision, on an accrued benefits basis. REPRESENTATION Appellant represented by: Christopher F. Attig, Attorney WITNESS AT HEARING ON APPEAL The appellant's attorney ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty with the United States Navy from December 1942 to December 1945. He died in February 2010. The appellant is his surviving spouse. This matter comes before the Board on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, with jurisdiction later transferred to the RO located in New Orleans, Louisiana. A Board videoconference hearing was held in September 2014 before the undersigned Veterans Law Judge (VLJ), and whereas the appellant was unavailable to provide testimony, her attorney presented the case on her behalf. The hearing transcript is of record. In February 2015, the claim for entitlement to an effective date prior to June 9, 1989 for the assignment of a 100 percent schedular evaluation for a psychiatric disorder, with anxiety reaction and depression, including based upon CUE in an April 1992 rating decision, on an accrued benefits basis was dismissed by the Board. The appellant appealed this determination to the United States Court of Appeals for Veterans Claims (Court). The Court subsequently granted a February 2016 Join Motion for Partial Remand (JMR) which had the effect of vacating that portion of the Board's decision which dismissed the appellant's claim for accrued benefits. The appeal with respect to the Board's dismissal, in a separate decision, of the appellant's motions for revision of prior Board decisions in June 1989 and January 1992 on the basis of CUE and its referral of an inferred claim for Special Monthly Compensation based on Aid and Attendance was not contested and is no longer before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains the Board hearing transcript, with the remainder of the documents in that file being either irrelevant or duplicative of the existing evidence. The record reflects that the Veteran has submitted a timely notice of disagreement (NOD) with respect to a June 2015 determination, which denied entitlement to accrued benefits, based on entitlement to special monthly compensation based on Aid And Attendance/Housebound. See VA Form 21-0958, dated June 9, 2016. Although the RO has not yet issued a statement of the case (SOC), the Board notes that the issue is acknowledged in the electronic Veterans Appeals Control and Locator System (VACOLS). Accordingly, as the receipt of the NOD has been acknowledged by the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Since VACOLS and the electronic claims file reflect that the NOD has been documented and that additional action is pending at the RO with regard to this claim, Manlincon is not applicable in this case. Consequently, the Board will not further address the matter at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the February 2016 partial JMR, endorsed by the Court, the Veteran and the VA Secretary (the parties) agreed that the appellant's accrued benefits claim should be returned to the Board. The parties determined that the Board erred in not considering the appellant's May 2010 claim for death benefits as a request for substitution pursuant to 38 C.F.R. § 3.1010(c)(2). The Board notes, however, that this issue was both raised and addressed in the decision. See February 2015 Board decision, page 7. Additionally, as noted in the decision, the appellant's attorney expressly disclaimed that a substitution claim was filed. See February 2015 Board decision, page 7; September 2014 Board Hearing Transcript, page 6. Despite this misstatement of facts and error in the partial JMR, the Board must comply with the terms of a remand from the Court. See Forcier v. Nicholson, 19 Vet. App. 414, 426 (2006) (noting that the Board must enforce a JMR); Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (discussing the law of the case doctrine and holding that the Board may not take action contrary to a prior Court decision in the same case). The filing of a claim for death benefits is deemed to include a request to substitute for any pending claims. 38 C.F.R. § 3.1010(c)(2) (2015). It is the responsibility of the RO and not the Board to determine whether a particular claimant is eligible for substitution. 38 C.F.R. § 3.1010(e) ("The agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans' Appeals."). Prior to his death, in February 2010, the RO denied the Veteran's claim for an earlier effective date for the 100 percent rating for psychiatric disability, based on an allegation of CUE in several prior rating decisions, including the April 1992 rating decision. See October 2009 rating decision. He was sent notice of this decision in October 2009, but later died in February 2010. Although the Veteran did not file a notice of disagreement (NOD) with respect to the October 2009 rating decision prior to his death, the period to do so did not expire until October 2010. Therefore, his death was within the statutorily provided one year period during which he could have filed a NOD. Thus, the claim was pending on the date of his death. In May 2010, the appellant filed an Application for Dependency and Indemnity Compensation, Death Pension and Benefits by a Surviving Spouse or Child, which was granted in an August 2010 rating decision and basic eligibility to Dependents' Educational Assistance was established. Given that the one-year appeal period had not yet expired at the time of the Veteran's death, the RO deemed the earlier effective claim as pending for accrued benefits purposes. See 38 C.F.R. § 3.160(c); Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007). The Board notes that for purposes of the instant claim, the CUE inquiry centers entirely upon the April 1992 RO rating decision. See Board Hearing Transcript, page 10. The Board acknowledges that the appellant's May 2010 claim may be construed as an inferred request for substitution under the provisions of 38 C.F.R. § 3.1010(a),(c)(2). However during the February 2014 Board hearing her attorney expressly indicated that she "elected not to seek a substitution claim, because there was no new evidence to add on the effective date claim." See Board Hearing Transcript, page 6; see also Reliford v. McDonald, 27 Vet. App. 297, 303-04 (2015) (noting that the appellant has the right to choose to waive substitution). Upon the filing of VA Form 21-534, the appellant must be notified of her right to waive substitution to determine how her claim is adjudicated. Reliford, 27 Vet. App. at 303-04. In this case, the RO has not determined if substitution is warranted in this case. It also does not appear that applicable notice was provided to the appellant regarding the eligibility requirements for substitution which, if granted, would place her in a more favorable position than that of a claimant pursuing benefits on an accrued basis (substitution allows for development of the evidentiary record while an accrued benefits claimant must rely on evidence present in the record at the time of the Veteran's death). Based on the foregoing, a remand is warranted to allow the AOJ to address the outstanding substitution request including waiver of the right to be a substitute claimant. 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. Provide appropriate notice to the appellant that she may either pursue her claim on an accrued benefits basis or under substitution. The appellant must be notified of her right to waive substitution to determine how her claim is adjudicated. Associate the notice letter with the claims file. 2. After any appropriate time period, adjudicate whether the appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the appeal for entitlement to an earlier effective date based on CUE in the April 1992 rating decision, including whether the appellant properly waived the right to substitute per her attorney's presentation at the February 2014 Board hearing. The AOJ must comply with the provisions of 38 C.F.R. § 3.1010(c)(2), 38 C.F.R. § 3.1010(e)(1), and the decision in Reliford. 2. If the appellant is deemed to be a proper substitute for continuing the earlier effective date claim, adjudicate the claim after allowing the appropriate time to submit evidence supportive of her contentions. If any benefit is denied, issue a supplemental statement of the case and return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).