Citation Nr: 1757566 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-32 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for pancreatic cancer. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to January 1978 and from April 1979 to April 1983 in the United States Navy. He died in November 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2017, the appellant withdrew her request for a Board hearing. The Board notes that in her July 2013 Substantive Appeal (VA Form 9), the appellant asserted that VA healthcare providers only focused treatment on the Veteran service-connected disabilities and failed to notice that he was suffering from a more severe and life-threatening disease, i.e., pancreatic cancer. She stated that she believed VA let the Veteran die of cancer, which could have been detected earlier. The Board interprets this statement as a claim for DIC benefits pursuant to 38 U.S.C. § 1151. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on her part is required. REMAND In March 2011, the Veteran filed a claim of service connection for pancreatic cancer. Unfortunately, he died prior to the adjudication of his claim. In December 2011, the appellant filed a claim for DIC, accrued, and death pension benefits. In the absence of a specific request to substitute, VA is to treat qualifying death claims as requests to substitute. 38 C.F.R. § 3.1010(c)(2); Veterans Benefits Administration Fast Letter No. 10-30 (August 10, 2010) (revised April 3, 2013) (Fast Letter 10-30). Unlike accrued benefits claims, which are limited to the evidence of record at the time of the Veteran's death, a substitute claimant would be able to submit additional evidence that was not of record at the time of the claimant's death. However, an appellant has the option to waive substitution if he or she chooses. See Fast Letter 10-30. Here, the issue of the appellant's eligibility as a substitute claimant has not been adjudicated by the AOJ, nor has the appellant been sent notice regarding substitution and her right to waive it. See Reliford v. McDonald, 27 Vet. App. 297 (2015) (holding that an accrued benefits claim was not adjudicated against the proper factual background because the appellant had not first been afforded the VA procedural right to choose the path by which her claim was adjudicated). Accordingly, this case must be remanded so that the AOJ can seek clarification from the appellant as to whether she wishes to pursue this claim currently as a substitute claimant or for accrued benefits purposes. See 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). Once the appellant clarifies whether she wishes to proceed with the claims for accrued benefits purposes or for substitution purposes, the AOJ should take appropriate action to include notice of the substantive law and regulations and adjudication of the claims in a decision. If the appellant wishes to be a substitute claimant, the AOJ shall decide the question of substitution in a decision or decisional letter. The appellant must be notified of all decisions and appellate rights. Regarding the appellant's claim for DIC benefits based on service connection for the cause of the Veteran's death, the Board notes that is unclear whether she has received adequate notice under the Veterans Claims Assistance Act (VCAA). The September 2012 rating decision indicates that a notice letter was sent in April 2012; however, a copy of this letter is not of record. Therefore, a remand is necessary to ensure that the appellant has received adequate notice. In addition, in December 2011, the appellant submitted an authorization form so that VA could assist her in obtaining private treatment records from Dr. B.S. and Dr. R.M.; however, no action was taken. Therefore, a remand is also necessary so that an attempt can be made to obtain these records. See 38 C.F.R. § 3.159(c)(1). Prior to his death, the Veteran asserted that his pancreatic cancer was caused by exposure to Agent Orange. In a November 2011 statement, he indicated that he "flew off the carrier with several squadron members and the mail crew on several occasions to pick up aircraft parts, arriving crew members, and generally 'scavenge' any[]thing that [his] Squadron needed aboard ship." He further stated that he "would land at Da Nang Air Base, and be on the ground while performing such callateral [sic] duties." Base on the foregoing, the Board finds that a remand is also necessary so that an attempt can be made to verify the Veteran's visitation to Vietnam. Accordingly, the case is REMANDED for the following actions: 1. Contact the appellant and request clarification as to whether she is pursuing the claim of service connection for pancreatic cancer as a substitute claimant or for accrued benefits purposes. 2. Once the appellant clarifies which option she wishes to pursue regarding the claim of service connection for pancreatic cancer, i.e., for accrued benefits purposes or for substitution purposes, take appropriate action with respect to VA's duty to notify and assist to include notice of the substantive law and regulations and conduct any appropriate development. 3. If the appellant wishes to be a substitute claimant, the AOJ should formally determine whether she qualifies as a substitute claimant, and documentation of this determination must be associated with the electronic claims file. The appellant must be notified of this decision and of her appellate rights. 4. The AOJ should ensure that the appellant has received adequate notice pursuant to 38 U.S.C. § 5103 and 38 C.F.R. § 3.159(b). The AOJ should associate a copy of the April 2012 VCAA letter with the claims file, or, if the letter cannot be located, the AOJ should send another notice letter to the appellant and allow her an opportunity to respond. 5. The AOJ should take the necessary steps to obtain private treatment records from Dr. B.S. and Dr. R.M., as identified in her December 2011 authorization form, and associate these records with the claims file. 6. The AOJ should obtain any outstanding VA treatment records. 7. The AOJ should contact the appropriate service department and/or records custodian(s) with a request for copies of any pertinent records, including copies of the command history and deck logs of the USS Kitty Hawk (CV-63) to attempt to verify herbicide exposure in Vietnam for the Veteran on a factual basis and to verify the locations of the ship while the Veteran served in the territorial waters of the Republic of Vietnam. 8. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs, to include obtaining a VA medical opinion concerning the cause of the Veteran's death, if necessary. 9. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence associated with the claims file since the most recent Statement of the Case (SOC). If any benefit sought is not granted, the appellant should be furnished a Supplemental SOC (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).