Citation Nr: 1802366	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  11-17 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to substitution of the appellant as claimant due to the death of the Veteran, in relation to claims addressed in a March 2015 rating decision. 

2.  Entitlement to service connection for right knee condition for substitution purposes.  

3.  Entitlement to service connection for left knee condition for substitution purposes.

4.  Entitlement to service connection dementia for substitution purposes.

5.  Entitlement to service connection for tremors for substitution purposes.

6.  Entitlement to service connection for pes planus, for substitution purposes.

6.  Entitlement to service connection for atrial fibrillation for substitution purposes.  

7.  Entitlement to an effective date prior to February 25, 2013 for the award of service connection for coronary artery disease for substitution purposes. 

8.  Entitlement to a rating in excess of 70 percent for right upper extremity diabetic peripheral neuropathy for substitution purposes.

9.  Entitlement to a rating in excess of 60 percent for left upper extremity diabetic peripheral neuropathy for substitution purposes.

10.  Entitlement to a rating in excess of 40 percent for right lower extremity diabetic peripheral neuropathy for substitution purposes.

11.  Entitlement to a rating in excess of 40 percent for left lower extremity diabetic peripheral neuropathy for substitution purposes.

12.  Entitlement to a compensable rating for chest scar, status post coronary artery bypass graft surgery, for substitution purposes.  

13.  Entitlement to a compensable rating for left thigh scar, status post coronary artery bypass graft surgery, for substitution purposes.  


REPRESENTATION

Appellant represented by:	Christopher Loicano, Agent




ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from December 1958 to April 1967.  He died in May 2015.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Salt Lake City, Utah Regional Office (RO) of the Department of Veterans' Affairs (VA).

The issues of entitlement to service connection for right knee condition, left knee condition, dementia, tremors, pes planus and atrial fibrillation for substitution purposes; entitlement to an effective date prior to February 25, 2013 for the award of service connection for coronary artery disease for substitution purposes; and entitlement to increased ratings for bilateral upper and lower extremity diabetic peripheral neuropathy, scar of the chest and scar of the thigh for substitution purposes, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran died in May 2015; the appellant filed a claim to substitute for the Veteran in March 2016.

 2.  There were pending claims at the time of the Veteran's death in May 2015.

CONCLUSION OF LAW

Because there were claims on appeal pending at the time of the Veteran's death, the criteria for substitution of the appellant for the Veteran have been met.  38 U.S.C. 
§ 5121, 5121A (2012); 38 C.F.R. §§ 3.57, 3.1000, 3.1010 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary.

II.  Analysis

In March 2016, the appellant submitted a statement that was received as a request to continue claims on appeal of the Veteran pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating 38 U.S.C. § 5121A, allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008).

Under 38 U.S.C.A. § 5121A , an eligible person may request to substitute as claimant for a veteran following his or her death for the purpose of processing any pending claims to completion.  Substitution differs from a traditional "accrued benefits" claim in that additional evidence and argument may be added to the claims file following the death of the veteran.  Cf. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000.  A request for substitution must be filed not later than one year after the date of a veteran's death and, as provided for in this provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title..." Id.; 38 U.S.C.A. 
§ 5121A.

The regulations provide that, in order for a substituted claimant to move forward, "a claim or appeal must be pending."  38 C.F.R. § 3.1010 (g)(1).  A claim is considered to be pending "if the claimant had filed the claim with an agency of original jurisdiction but dies before the agency of original jurisdiction makes a decision on the claim," or if at the time of the claimant's death, "the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired."  38 C.F.R. § 3.1010 (g)(1)(i).

In March 2015, the RO issued a rating decision addressing a number of claims filed by the Veteran.  This decision granted service connection for coronary artery disease and assigned a 100 percent rating effective February 25, 2013; granted service connection for right upper extremity diabetic peripheral neuropathy and assigned a 70 percent rating effective December 9, 2014; granted service connection for left upper extremity diabetic peripheral neuropathy and assigned a 60 percent rating effective December 9, 2014; granted service connection for right lower extremity diabetic peripheral neuropathy and assigned a 10 percent rating effective September 24, 2010; a 20 percent rating effective October 6, 2011; and a 40 percent rating effective April8, 2014; granted service connection for left lower extremity diabetic peripheral neuropathy and assigned a 10 percent rating effective September 24, 2010; a 20 percent rating effective October 6, 2011; and a 40 percent rating effective April 8, 2014; granted service connection for chest scar, status post coronary artery bypass surgery and assigned a noncompensable (0 percent) rating effective February 25, 2014; and granted service connection for left thigh scar, status post coronary artery bypass surgery and assigned a noncompensable (0 percent) rating effective February 25, 2014.  The decision also denied service connection for right knee condition, left knee condition, dementia, tremors and atrial fibrillation.  

Subsequently, along with her request for substitution, the appellant and her representative submitted a March 2016 notice of disagreement (NOD), disagreeing with the findings of the rating decision, as indicated by issues 2 to 13 listed in the "Issues" section above.  The RO then subsequently determined that this NOD was timely but that the appellant was not an appropriate candidate for substitution because the Veteran did not have a claim pending at the time of his death.  The RO based this finding on the Veteran having not filed a notice of disagreement with the March 2015 decision prior to his death in May 2015.  However, as noted above, for substitution purposes, a claim is considered to be pending, if at the time of the claimant's death, "the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired."  In this case, at the time of the Veteran's death, agency of original jurisdiction (i.e. the RO) had made a decision on the Veteran's claims and the RO subsequently determined that the period allowed by law had not expired at the time the appellant submitted her March 2016 request for substitution and her March 2016 NOD.  Consequently, the claims addressed but not granted in full by the March 2015 rating decision are pending and the appellant, as the Veteran's surviving spouse, is qualified to continue them as the Veteran's substitute.  38 C.F.R. § 3.1010 (g).  Accordingly, the RO should consider the continued claims on the merits in accordance with the instructions contained in the remand below.

The appellant is advised that the March 2015 rating decision granted the Veteran a total, 100 percent rating for his service connected disabilities and also granted him additional special monthly compensation at the housebound level.  Thus, in regard to a number of the claims remaining on appeal, there is minimal potential that the appellant will receive additional compensation, even if these claims are granted.  Consequently, she may want to consult with her representative to determine whether or not she wishes to continue to pursue her appeal in whole or in part.   


ORDER

Substitution of the appellant as claimant due to the death of the Veteran, in relation to claims addressed in a March 2015 rating decision, is granted.   


REMAND

In the decision above, the appellant has been determined to be a valid substitute in relation to the claims addressed in the March 2015 rating decision and subsequently appealed through March 2016 notices of disagreement (NODs) filed by the appellant and her representative.  Thus, on remand, the RO must follow regular appeals process in regard to responding to the March 2016 NODs, including by issuing an appropriate statement of the case, which addresses the claims on appeal on the merits.  Then, only if an appeal is timely perfected through submission of a VA Form 9, any remaining issues on appeal should be returned to the Board for further appellate consideration.
      
Accordingly, the case is REMANDED for the following action:

The AOJ should issue a statement of the case to the appellant addressing the matters of entitlement to service connection for right knee condition, left knee condition, dementia, tremors, pes planus and atrial fibrillation for substitution purposes; entitlement to an effective date prior to February 25, 2013 for the award of service connection for coronary artery disease for substitution purposes; and entitlement to increased ratings for bilateral upper and lower extremity diabetic peripheral neuropathy, scar of the chest and scar of the thigh for substitution purposes, including citation to all relevant law and regulation pertinent to these claims.  The appellant must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, the appeal is to be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs