Citation Nr: 1804186 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-04 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 20 percent for bunionectomy residuals, hammertoe deformities, and pes planus of the right foot. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of right knee. 3. Entitlement to a rating in excess of 10 percent for arthritis and chondromalacia patella of the left knee with limitation of motion. 4. Entitlement to a rating in excess of 10 percent for bunionectomy residuals, hammertoe deformities, and pes planus of the left foot. 5. Entitlement to a compensable rating for scars of the bilateral feet. 6. Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety, depression, and posttraumatic stress disorder (PTSD). 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 8. Entitlement to service connection for fibromyalgia. 9. Entitlement to service connection for sleep apnea. 10. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) and emphysema. 11. Entitlement to service connection for obesity, to include as secondary to service-connected bilateral knees. 12. Entitlement to service connection for a back disability. 13. Entitlement to service connection for a neck disability. 14. Entitlement to service connection for a right great toe disability. 15. Entitlement to service connection for carpal tunnel of the left upper extremity, to include peripheral neuropathy. 16. Entitlement to service connection for carpal tunnel of the right upper extremity, to include peripheral neuropathy. 17. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 18. Entitlement to automobile and adaptive equipment or adaptive equipment. 19. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1997 to June 2001. The Veteran died in June 2011. The appellant is the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from January 2009, March 2011, and November 2011 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. In a January 2009 rating decision, the RO denied claims for increased ratings for the Veteran's right foot, right knee, left knee, left foot, scars of the bilateral feet and a claim for entitlement to service connection for an acquired psychiatric disability. A claim for TDIU was additionally denied at that time. Prior to his death, the Veteran perfected appeals as to all of these issues. In a March 2011 rating decision, the RO denied service connection claims for fibromyalgia, sleep apnea, COPD and emphysema, obesity, a lumbar spine disability, neck disability, right great toe disability, carpal tunnel of the right and left upper extremities, peripheral neuropathy of the bilateral lower extremities and entitlement to automobile and adaptive equipment or adaptive equipment. The Veteran died prior to the appeal period ending. In November 2011, the RO denied service connection for cause of death. The appellant perfected an appeal as to this issue. This appeal was previously before Board in November 2016, when the claims were remanded in order to afford the appellant a hearing before the Board. A hearing was scheduled for April 2017. The appellant failed to appear for her scheduled hearing; accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that additional AOJ action is warranted, prior to appellate consideration. As noted above, in a March 2011 rating decision, the RO denied service connection claims for fibromyalgia, sleep apnea, COPD and emphysema, obesity, a lumbar spine disability, neck disability, right great toe disability, carpal tunnel of the right and left upper extremities, peripheral neuropathy of the bilateral lower extremities, and entitlement to automobile and adaptive equipment or adaptive equipment. The Veteran died prior to the appeal period ending. These claims thus remained 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) (2017). With respect to the claim for TDIU, the claim for service connection for an acquired psychiatric disability, and increased rating claims for his service-connected right foot, right knee, left knee, left foot, and scars of the bilateral feet, prior to his death, the Veteran perfected appeals as to all of these issues. The appeals regarding these claims also remained pending at the time of his death. As the Veteran died 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. § 5121A (2012); 38 C.F.R. § 3.1010. In June 2011, 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. § 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 increased rating claims, service connection claims, TDIU claim, or automobile or adaptive equipment claim pending at the time of the Veteran's death as either a substitute claimant or as a claimant for accrued benefits. Rather, it appears as if all pending claims were treated as accrued benefit claims. 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). Id. 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 requests to substitute); Reliford, supra (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 claims as either a substitute or an accrued benefits claimant and then following a response, the AOJ must make a substitution determination. Id. With respect to the appellant's 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, the case is REMANDED for the following actions: 1. Contact the appellant and request clarification as to whether she is pursuing the following claims as a substitute claimant or for accrued benefits purposes: (1) Entitlement to a rating in excess of 20 percent for bunionectomy residuals, hammertoe deformities, and pes planus of the right foot; (2) Entitlement to a rating in excess of 10 percent for degenerative arthritis of right knee; (3) Entitlement to a rating in excess of 10 percent for arthritis and chondromalacia patella of the left knee with limitation of motion; (4) Entitlement to a rating in excess of 10 percent for bunionectomy residuals, hammertoe deformities, and pes planus of the left foot; (5) Entitlement to a compensable rating for scars of the bilateral feet; (6) Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety, depression, and PTSD; (7) Entitlement to a TDIU; (8) Entitlement to service connection for fibromyalgia; (9) Entitlement to service connection for sleep apnea; (10) Entitlement to service connection for COPD and emphysema; (11) Entitlement to service connection for obesity, to include as secondary to service-connected bilateral knees; (12) Entitlement to service connection for a back disability; (13) Entitlement to service connection for a neck disability; (14) Entitlement to service connection for a right great toe disability; (15) Entitlement to service connection for carpal tunnel of the left upper extremity, to include peripheral neuropathy; (16) Entitlement to service connection for carpal tunnel of the right upper extremity, to include peripheral neuropathy; (17) Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities; and, (18) Entitlement to automobile and adaptive equipment or adaptive equipment. 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 June 2011 death will not be considered. 2. If the appellant elects to proceed with the claims noted in paragraph 1 as a substitute claimant, and substitution is granted, proceed with the actions identified in paragraphs 3 and 4, 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. After completing the above, and any other development deemed necessary, readjudicate the issues currently on appeal with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, issue the appellant a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING 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).