Citation Nr: 1746911 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-18 470 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for coronary artery disease, status post stent placement, claimed as ischemic heart disease, to include as due to tactical herbicide exposure. 2. Entitlement to service connection for stomach cancer, to include as due to tactical herbicide exposure. 3. Entitlement to service connection for bladder cancer, to include as due to tactical herbicide exposure. 4. Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967 in the United States Air Force. He died in September 2011. The appellant is the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from September 2011 and June 2012 rating decisions. In the September 2011 rating decision, the RO denied the Veteran's claims for coronary artery disease, status post stent placement, claimed as ischemic heart disease, stomach cancer and bladder cancer. In October 2011, the appellant filed a notice of disagreement (NOD). In the June 2012 rating decision, the RO in St. Paul, Minnesota, inter alia, denied service connection for cause of death. Later that same month, the appellant filed a NOD. A June 2013 statement of the case (SOC) was issued by the RO in St. Paul, Minnesota for all the issues on appeal. The appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2013 and requested a Board hearing. In April 2016, the RO in Oakland, California issued a VA Form 8, Certification of Appeal for all issues on appeal. In October 2016, the appellant was afforded a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the appellant when further action, on her part, is required. REMAND The Board's review of the claims file reveals that additional AOJ action in this appeal, prior to appellate consideration, is warranted. For the issues of service connection for coronary artery disease, stomach cancer and bladder cancer, these claims were pending at the time of the Veteran's death. Taylor v. Nicholson, 21 Vet. App. 126 (2007) (holding that while a veteran did not file a notice of disagreement prior to death, a claim was still pending as the time period to appeal a rating decision had not expired); 38 C.F.R. § 3.1010(g)(1) (2016). As the Veteran expired after October 10, 2008, the law permits a substitution of claimant when the original claimant dies during the pendency of the claim or appeal. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010. In March 2012, the Appellant filed a timely VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child. This claims form is considered to include a request to substitute for claims pending before VA at the time of the Veteran's death. 38 U.S.C.A. § 5121A; 38 C.F.R. § 3.1010(c)(2). The claims file does not reflect that the AOJ has made any substitution determination or informed the appellant about her rights to pursue the service connection claims pending at the time of the Veteran's death as either a substitute claimant or as a claimant for accrued benefits. See May 2012 notification letter. In Reliford v. McDonald, 27 Vet. App. 297 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant's right to choose whether she wishes to waive substitution when she files a claim for accrued benefits (i.e. VA Form 21-534). Reliford v. McDonald, 27 Vet. App. at 304. As a substitute claimant, the claim remains that of the deceased Veteran. Evidence obtained following the Veteran's death must be considered and VA must fulfill its duties to notify and assist the appellant. By contrast, as an accrued benefit claimant, the evidence is limited to the record on the date of the Veteran's death. The request to substitute must be decided by the AOJ. See 38 C.F.R. § 3.1010(e) (AOJ must decide in first instance all request to substitute); Id. (declining to find harmless error where the appellant was not provided the opportunity to waive substitution). In this case, the Board finds that the appellant must be specifically notified about her rights to pursue these service connection claims as either a substitute or an accrued benefit claimant and then following a response, the AOJ must make a substitution determination. Id. If the appellant elects to proceed as a substitute claimant, and substitution is granted, the AOJ should conduct additional development to verify the appellant's contention that the Veteran had tactical herbicide exposure during September 23, 1965 to October 21, 1966 service at the Udorn Royal Thai Air Force Base (RTAFB) as an automotive repairman on facts found basis as instructed below. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b As for the service connection for cause of death claim, the Board points out that favorable action on the above claims being remanded could favorably affect the outcome of the cause of death claim. Thus, the Board finds that the issue of service connection for cause of death is inextricably intertwined with the other claims being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As Board action on the cause of death claim would be premature, at this juncture, this matter is being remanded, as well. Accordingly, these matters are hereby REMANDED for the following action: 1. Contact the appellant and request clarification as to whether she is pursuing the claims for service connection for coronary artery disease, stomach cancer and bladder cancer as a substitute claimant or for accrued benefits purposes. The appellant is reminded that if she proceeds in the appeal of those issues for accrued benefits purposes, evidence that was not in VA's possession at the time of the Veteran's September 2011 death will not be considered. 2. If the appellant elects to proceed with the claims for service connection for coronary artery disease, stomach cancer and bladder cancer as a substitute claimant, and substitution is granted, proceed with the actions identified in paragraphs 3 to 5, below. 3. Send to the appellant a letter requesting that she provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the appellant responds with the identification of additional evidence, assist her in obtaining such evidence by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. Contact the Joint Services Records Research Center (JSRRC), Air Force Historical Research Agency (AFHRA), and/or any other relevant facility to request detailed information for the following units at Udorn RTAFB: 6232 Combat Support Group from September 23, 1965 to December 23, 1965; 6232 Supply squadron from December 23, 1965 to March 13, 1966; 6232 Support Squadron from March 13, 1966 to April 8, 1966; and 630 Support Squadron from April 8, 1966 to October 21, 1966 to determine the location of these units within the airfield. Take any additional steps necessary to determine whether the Veteran's specialty as an Automotive Repairman required regular contact with the base perimeter. Follow up on any recommended action (to include suggested contact with any other facility to obtain the requested information). All requests and responses received should be associated with the electronic claims file. All findings should be set forth in a report added to the record. The report must be responsive to the Board's request above. A generic response regarding the use of herbicides in Thailand will not suffice. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 8. If any benefit(s) sought on appeal remain(s) denied, furnish to the appellant and her representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).