Citation Nr: 18145385 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-46 789 DATE: October 30, 2018 REMANDED The claim of entitlement to service connection for ischemic heart disease, for accrued benefits purposes, is remanded. The question of whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for esophageal varices, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for hyperglycemia, for accrued benefits purposes, is remanded. The question of whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, is remanded. The question of whether new and material evidence has been received to reopen the claim of entitlement to service connection for cirrhosis, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for peripheral neuropathy of the right lower extremity, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for broken collar bone, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for head trauma, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for traumatic brain injury (TBI), for accrued benefits purposes, is remanded. The claim of entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD), for accrued benefits purposes, is remanded. The claim of entitlement to a rating greater than 10 percent for shell fragment wound muscle group XII, left leg, to include scar with peripheral neuropathy, for accrued benefits purposes, is remanded. The claim of entitlement to an increased (compensable) rating for malaria, for accrued benefits purposes, is remanded. The claim of entitlement to an increased (compensable) rating for shrapnel fragment wound right thigh, for accrued benefits purposes, is remanded. The claim of entitlement to a total disability rating based individual unemployability (TDIU), for accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to April 1963 and from August 1965 to August 1968. He died in June 2012. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2012 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denied accrued benefits. The appellant filed a notice of disagreement (NOD) in January 2013. The RO issued a statement of the case (SOC) in September 2015 addressing all of the claims on appeal individually (as opposed to singularly for accrued benefits) and she filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2015. A supplemental SOC (SSOC) was issued in April 2016. Regarding characterization of the claims to reopen, the Board notes that service connection for cirrhosis, hypertension, bilateral hearing loss and tinnitus was previously denied in prior final rating decisions. The Board notes that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As such, the Board has characterized those claims as requiring new and material evidence to reopen the previously denied claims. Given the Board’s remand of these claims, the agency of original jurisdiction (AOJ) was have the opportunity to adjudicate them in the first instance on remand. The Board’s review of the claims file reveals that additional AOJ action in this appeal, prior to appellate consideration, is warranted. Regarding the claims of entitlement to accrued benefits, the Board notes that several unadjudicated claims for service connection, increased ratings and a TDIU, as reflected above, were unadjudicated 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 July 2012, 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, evidence has been associated with the claims file since the Veteran’s death. While these matters are on remand, if the appellant elects to proceed as a substitute claimant, to ensure that all due process requirements are met, 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 claims 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 June 2012 death will not be considered. 2. If the appellant elects to proceed as a substitute claimant, and substitution is granted, furnish to appellant a letter requesting that she 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). 3. 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. 4. 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). 5. 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