Citation Nr: 18139697 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 15-30 876 DATE: October 1, 2018 REMANDED The claim of entitlement to dependency and indemnity compensation (DIC) for the cause of the Veteran’s death under 38 U.S.C. § 1151 is remanded. The claim of entitlement to DIC under 38 U.S.C. § 1318 is remanded. The claim of entitlement to service-connected burial benefits is remanded. The claim of entitlement to accrued benefits is remanded REASONS FOR REMAND The Veteran served on active duty from October 1972 to November 1975. He died in July 2013. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from an May 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, inter alia, denied the appellant’s claims for DIC compensation under 38 U.S.C. §§ 1151 and 1318, accrued benefits, and service-connected burial benefits. The appellant filed a notice of disagreement (NOD) in June 2014. The RO issued a statement of the case (SOC) in July 2015 and he filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. The Board’s review of the claims file reveals that additional agency of original jurisdiction (AOJ) action in this appeal, prior to appellate consideration, is warranted. Regarding the claim of entitlement to accrued benefits, the Board notes that an unadjudicated claim for of service connection for gastro cancer was pending at the time of the Veteran’s 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; 38 C.F.R. § 3.1010. In August 2013, 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 service connection claim pending at the time of the Veteran’s death as either a substitute claimant or as a claimant for accrued benefits. 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). 27 Vet. App. 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 evidence of record (to include evidence constructively of 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 request to substitute); Id. (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 service connection claims as either a substitute or an accrued benefit claimant and then following a response, the AOJ must make a substitution determination. Id. Notably, a substantial amount of evidence has been associated with the claims file since the Veteran’s death. If the appellant elects to proceed as a substitute claimant, and substitution is granted, further development regarding the claim for service connection is warranted. The appellant asserts that service connection for gastric cancer is warranted. She has argued that service connection is warranted on a direct basis as related to the Veteran’s in-service experience of entering a burning building, which is confirmed by a certificate of appreciation, and his inhalation of smoke during that experience. See October 2017 Statement of Appellant. In the alternative, she argues that the Veteran’s fatal cancer was secondary to service-connected posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse in sustained remission. In conjunction with the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death, several VA medical opinions regarding the Veteran’s fatal gastro cancer were rendered. A VA medical opinion was provided in May 2014. The examiner explained that it is less likely than not that fatal gastro cancer was caused by, or materially or substantially contributed to, by the service-connected PTSD with depressive disorder. However, the examiner did not offer a rationale for that opinion, which seemingly indicates that the Veteran’s fatal gastro cancer was not secondary to the service-connected PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the opinion does not address the appellant’s assertion that the Veteran’s fatal gastro cancer is related service, namely the confirmed in-service event when the Veteran entered a burning building to rescue others. The appellant alleges that the Veteran inhaled smoke during that event, which could have led to his fatal cancer. Given the above, the Board finds that, if the appellant elects to proceed as a substitute on the Veteran’s service connection claim, a remand of the accrued benefits claim is needed to obtain a medical opinion addressing whether the Veteran’s cancer was directly related to service or, alternatively, secondary to service-connected PTSD with depressive disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or to otherwise obtain an opinion when developing a service connection claim, it must provide or obtain one that is adequate for purposes of the determination being made). The Board notes that the claims of entitlement to DIC under 38 U.S.C. § 1318 and for service-connected burial benefits are inextricably intertwined with the claim for accrued benefits. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the service-connected burial benefits and DIC under 38 U.S.C. § 1318 claims, at this juncture, would be premature. Hence, those matters are being remanded, as well. On remand, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA treatment, records from the Jackson VA Medical Center (VAMC) dated from June 2013 to December 2011, January 2009 to December 2007, July 2006 to March 2004, December 2003 to September 2000. As there are gaps between the VA treatment records associated with the claims file, it appears that there may be outstanding VA treatment records which may be relevant to the claim for DIC under § 1151 and the claim for accrued benefits. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, the AOJ undertake appropriate action to associate with the Veteran’s electronic claims file all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to a request for records from Federal facilities. Also, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards any private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103. 5103A; 38 C.F.R. § 3,156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. These matters are hereby REMANDED for the following action: 1. Contact the appellant and request clarification as to whether she is pursuing the Veteran’s unadjudicated claim for service connection for “gastro” cancer as a substitute claimant, or for accrued benefits purposes. 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 July 2013 death will not be considered. If the appellant elects to proceed with the claim for service connection for gastro cancer as a substitute claimant, and substitution is granted, proceed with the actions identified in paragraph 6, below. 2. Obtain from the Jackson VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated from January 2009 to December 2011, July 2006 to December 2007, and December 2003 to March 2004. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the electronic claims file. 3. Furnish to appellant a letter requesting that the appellant provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that appellant furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the matters within the one-year period). 4. If the appellant responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. If and only if the appellant elects to pursue to the claim for service connection for gastro cancer as a substitute, after all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the January 2014 VA examiner for an addendum opinion addressing the etiology of the Veteran’s gastro cancer. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible). The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion should include discussion of the Veteran’s documented history and all lay assertions. Then, with respect to gastric cancer, the physician is requested to provide opinion, based on consideration of all document evidence and assertions, and consistent with sound medical principles, addressing the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active service or is otherwise medically-related to service. In answering the above, the physician must specifically comment on the Veteran’s in-service experience of entering a burning building and inhaling smoke. b. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) was caused OR (b) is or has been aggravated (worsened beyond the natural progression) by his service-connected PTSD with depressive disorder and alcohol abuse in sustained remission. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. The physician is advised that the Veteran was competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel