Citation Nr: 1755068 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-35 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for stomach cancer with ulcerated plaque in the gastric cardia with lymph node ("stomach cancer"), to include as secondary to service-connected prostate cancer. 2. Entitlement to an effective date prior to July 8, 2009, for the assignment of a 100 percent rating for prostate cancer. 3. Entitlement to an initial rating in excess of 10 percent for anemia. 4. Entitlement to an effective date prior to August 20, 2013, for the award of service connection for anemia. 5. Entitlement to a disability rating in excess of 30 percent for pruritus ani. 6. Entitlement to an effective date prior to August 20, 2013, for the assignment of a 30 percent disability rating for pruritus ani. REPRESENTATION Appellant represented by: Brian D. Hill, Attorney-at-Law ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to September 1952, and from December 1952 to August 1971. His service medals and decorations included the Combat Infantryman Badge. In June 2016, the Veteran unfortunately died. The Appellant is his surviving spouse, who, as will be discussed below, has been properly substituted as a claimant in this case. This appeal is before the Board of Veterans' Appeals (Board) from February 2010 and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, and St. Petersburg, Florida, respectively. The case is currently with the RO in St. Petersburg, Florida. The February 2010 rating decision granted service connection for prostate cancer and assigned a total initial rating, effective July 8, 2009. The Veteran submitted a timely Notice of Disagreement (NOD) regarding the effective date. In June 2015, the RO denied service connection for stomach cancer. It also granted service connection for anemia and assigned a 10 percent initial rating, effective April 30, 2014; and continued a 30 percent disability rating for pruritus ani. The Veteran submitted a timely NOD regarding the claims for service connection for stomach cancer, the ratings assigned for anemia and pruritus ani, and the effective dates for anemia and pruritus ani. Subsequently, in a March 2016 rating decision, the RO granted an earlier effective date of August 20, 2013, for the service connection award for anemia and the 30 percent rating for pruritus ani. The Board notes that the Veteran requested a Travel Board hearing only on his claim for an earlier effective date for his prostate cancer. As such, notice that a Board hearing had been scheduled for November 15, 2017 was sent. However, the Appellant withdrew the request for a Board hearing in writing in October 2017 correspondence, received in November 2017. FINDINGS OF FACT 1. The Veteran filed claims for service connection for stomach cancer; for earlier effective dates for prostate cancer, anemia, and pruritus ani; and for higher ratings for anemia and pruritus ani, all of which had not yet been adjudicated by the Board at the time of his death. 2. The Appellant is the Veteran's surviving spouse, who was properly substituted as the claimant to continue the Veteran's pending claims and appeal to completion. 3. Prior to the promulgation of a decision in the appeal and prior to the Veteran's death, the Board received a May 2016 written statement from the Veteran indicating that he wished to withdraw the issues of service connection for stomach cancer, higher ratings for anemia and pruritus ani, and earlier effective dates for anemia and pruritus ani. 4. Prior to the promulgation of a decision in the appeal, the Board received a November 2017 written statement from the Appellant indicating that she wished to withdraw the issue of an earlier effective date for the assignment of a 100 percent disability rating for prostate cancer. CONCLUSIONS OF LAW 1. The Veteran's surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria for withdrawal of appeal concerning the issue of entitlement to service connection for stomach cancer have been met. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). 3. The criteria for withdrawal of appeal concerning the issue of entitlement to an effective date prior to July 8, 2009, for the assignment of a 100 percent rating for prostate cancer have been met. 38 U.S.C. §§ 5121A, 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). 4. The criteria for withdrawal of appeal concerning the issue of an initial rating in excess of 10 percent for anemia have been met. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). 5. The criteria for withdrawal of appeal concerning the issue of entitlement to an effective date prior to August 20, 2013, for the award of service connection for anemia have been met. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). 6. The criteria for withdrawal of appeal concerning the issue of a disability rating in excess of 30 percent for pruritus ani have been met. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). 7. The criteria for withdrawal of appeal concerning the issue of entitlement to an effective date prior to August 20, 2013, for the assignment of a 30 percent rating for pruritus ani have been met. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Appellant as Substitute Claimant When a veteran has claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). The statute regarding accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). Here, the record reflects that in July 2009 the Veteran filed a service connection claim for prostate cancer, which was granted and assigned a 100 percent initial rating in February 2010, to which the Veteran submitted a May 2010 NOD and October 2012 substantive appeal regarding the effective date. In April 2014, the Veteran filed a service connection claim for anemia, and a claim for a higher rating for pruritus ani. In June 2015, the RO granted service connection for anemia, and assigned an initial rating of 10 percent; and continued a 30 percent disability rating for pruritus ani. The Veteran submitted a December 2015 NOD and April 2016 substantive appeal regarding the ratings and the effective dates for both anemia and pruritus ani. In June 2015, he also filed a service connection claim for stomach cancer, which was denied in a June 2015 rating decision. He filed a December 2015 NOD and April 2016 substantive appeal. The claims remain unadjudicated in full, and the Veteran unfortunately died in June 2016. In August 2016, the RO received the Appellant's VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits, which is also construed as a request to be a substitute claimant in the Veteran's pending claims. In June 2017, the RO substituted the Appellant in accordance with the provisions of 38 U.S.C. § 5121A. The Appellant is appropriately recognized as the substitute-claimant to continue adjudication of the Veteran's claims. 38 U.S.C. § 5121A. As noted, the Veteran died in June 2016, after having filed and appealed his claims. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). In summary, the Appellant filed a motion for substitution within one year after the date of the Veteran's death, and the RO granted such motion in June 2017. In addition, the record contains credible evidence that the Appellant was married to the Veteran at the time of his death. The Appellant is a properly substituted claimant. II. Withdrawal of Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In May 2016, the Veteran stated that he desired to withdraw his appeal, specifically his appeal of the March 2016 Statement of the Case regarding service connection for stomach cancer; for effective dates for anemia and pruritus ani; and for higher ratings for anemia and pruritus ani, all of which are currently on appeal. In November 2017, the Appellant's attorney stated that the Appellant was satisfied that all issues on appeal were resolved and desired to withdraw all pending issues before the Board. Specifically, the Appellant withdrew the Veteran's October 2012 substantive appeal regarding an earlier effective date for prostate cancer. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeals is the appropriate disposition. 38 U.S.C. § 7105(d). Accordingly, further action by the Board concerning these claims is not warranted, and the appeal of the claims is dismissed. Id. ORDER The appeal seeking entitlement to service connection for stomach cancer is dismissed. The appeal seeking entitlement to an effective date prior to July 8, 2009, for the assignment of a 100 percent rating for prostate cancer is dismissed. The appeal seeking entitlement to an initial rating in excess of 10 percent for anemia is dismissed. The appeal seeking entitlement to an effective date prior to August 20, 2013, for the award of service connection for anemia is dismissed. The appeal seeking entitlement to a disability rating in excess of 30 percent for pruritus ani is dismissed. The appeal seeking entitlement to an effective date prior to August 20, 2013, for the assignment of a 30 percent rating for pruritus ani is dismissed. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs