Citation Nr: 18144132 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 17-26 685 DATE: October 24, 2018 REMANDED Entitlement to service connection for hearing loss, is remanded. Entitlement to an increased evaluation in excess of 10 percent for hypertension, is remanded. Entitlement to an earlier effective dated for the grant of service connection for hypertension prior to May 10, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to June 1984 and January 1986 to June 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2017 and July 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that the Veteran filed a Notice of Disagreement for the issues of increased rating for tinnitus, service connection for sleep apnea, headaches, anxiety disorder and erectile dysfunction have but they have not been certified to the Board. Thus, they are not currently before the Board, and no further consideration is needed at this time. The Veteran died in July 2018. In September 2018, M.A.P, the Veteran’s wife, submitted a Request for Substitution of Claimant Upon Death of Claimant. 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. 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. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; 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); 38 C.F.R. §§ 3.1010, 20.101(a). In light of the foregoing, the Board finds that the AOJ should make a formal determination regarding the basic eligibility for substitution of M.A.P. 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. The matters are 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 claims (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. If the basic eligibility requirements are met, contact the appellant and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not   able to be secured, provide the required notice and opportunity to respond to EF and her representative. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel