Citation Nr: 1802644 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-21 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus to include as secondary to a service connected equilibrium dysfunction. 2. Entitlement to a compensable evaluation for migraine headaches. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied a compensable rating for headaches. This matter further comes before the Board from a May 2014 rating decision in which the RO denied service connection for tinnitus, secondary to equilibrium dysfunction. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and the Legacy Content Manager. LCM contains additional VA treatment records, but otherwise contains documents that are duplicative of what is in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in October 2017. The Veteran submitted a claim for DIC and accrued benefits in November 2017. An eligible survivor submitting a claim for accrued benefits will automatically be considered as requesting to substitute. See M 21-1 VA Adjudication Procedures Manual, Part VIII, Chapter 2, Section 2.1.c. However, the request for substitution has not been adjudicated by the AOJ. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitution of claimants in the case of death of a claimant. 38 U.S.C. §§ 5121, 5121A (West 2012). When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted. See 38 U.S.C. § 5121 (West 2012); 38 C.F.R. § 3.1000 (2017); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993) (holding that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the file until after that date). However, when a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. See 38 U.S.C. §§ 5121, 5121A. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance. See 38 U.S.C. § 7104 (a) (West 2012); 38 C.F.R. §§ 3.1010, 20.101(a) (2017). In light of the foregoing, the Board finds that the AOJ should make a formal determination regarding the basic eligibility for substitution of the Veteran's spouse in the first instance with respect to the appeal and if substitution is permitted, the AOJ should readjudicate the claim on appeal as a substitution claim. Should the AOJ find that substitution is appropriate, the record indicates the need for further development per below. Accordingly, the case is REMANDED for the following action: 1. Issue a decision adjudicating whether the Veteran's spouse meets the basic eligibility requirements to substitute for the Veteran with regard to the pending claim (as listed on the title page). If the basic eligibility requirements are met, send her appropriate notice with respect to her status as a substituted party, clearly indicating that VA recognizes her as the substituted party. If the basic eligibility requirements are not met, inform her of this in a correspondence other than a supplemental statement of the case. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the appellant. After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ K. MILLIKAN 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 your appeal. 38 C.F.R. § 20.1100(b) (2016).