Citation Nr: 18145411 Decision Date: 10/29/18 Archive Date: 10/26/18 DOCKET NO. 09-11 646 DATE: October 29, 2018 REMANDED Entitlement to service connection for a vision disorder, for the purpose of accrued benefits, is remanded. Entitlement to service connection for early obstructive lung disease, breathing problems, and chronic cough, for the purpose of accrued benefits, is remanded. Entitlement to service connection for lung cancer, for the purpose of accrued benefits, is remanded. Entitlement to service connection for brain cancer, for the purpose of accrued benefits, is remanded. Entitlement to service connection for headaches, for the purpose of accrued benefits, is remanded. Entitlement to an initial compensable rating for fatigue, for the purpose of accrued benefits, is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from October 1990 to August 1991. He died in December 2005 and the Appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified on the claim for service connection for the cause of the Veteran’s death at hearings before a Decision Review Office and the undersigned Veterans Law Judge in July 2007 and November 2010, respectively. Transcripts are of record. The Board remanded that claim in March 2011 and August 2014 and subsequently denied it in a January 2017 decision. The Appellant appealed the Board's January 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Joint Motion for Remand, the parties requested that the Court vacate the January 2017 Board decision that denied entitlement to service connection for the cause of the Veteran’s death. In a March 2018 Order, the Court granted the Joint Motion. 1. Entitlement to service connection for a vision disorder, for the purpose of accrued benefits, is remanded. 2. Entitlement to service connection for early obstructive lung disease, breathing problems, and chronic cough, for the purpose of accrued benefits, is remanded. 3. Entitlement to service connection for lung cancer, for the purpose of accrued benefits, is remanded. 4. Entitlement to service connection for brain cancer, for the purpose of accrued benefits, is remanded. 5. Entitlement to service connection for headaches, for the purpose of accrued benefits, is remanded. 6. Entitlement to an initial compensable rating for fatigue, for the purpose of accrued benefits, is remanded. The February 2018 Joint Motion determined that vacatur and remand of the Board’s January 2017 denial of the claim for service connection for the cause of the Veteran’s death were warranted because VA failed to issue a Statement of the Case (SOC) regarding the Appellant’s claim of entitlement to accrued benefits for service connection for lung disease, to include lung cancer, and other accrued benefits noted in the record. The claims noted in the Joint Motion were also denied in the May 2006 rating decision that is the subject of this appeal. The Joint Motion pointed to a December 2006 notice of disagreement (NOD) as the basis for its determination that an SOC should have been issued. The Board has reviewed the December 2006 NOD and finds that it does not address the claims denied in the May 2006 rating decision on an accrued basis. Indeed, even the Joint Motion specifically stated that the Appellant’s December 2006 NOD indicated her desire to appeal the denial of Dependency and Indemnity Compensation (DIC) benefits and cause of death. However, in an effort to maintain the agreement of the parties to the Joint Motion, the Board will find that a VA Form 21-4138 received on January 5, 2007 can arguably be construed as an NOD to the denial of the claims adjudicated on an accrued basis in the May 2006 rating decision. As such, remand is needed for the RO to issue an SOC on these claims. See Manlincon v. West, 12 Vet. App. 238 (1999). 7. Entitlement to service connection for the cause of the Veteran's death is remanded. This claim is inextricably intertwined with the claims being remanded for an SOC. The matters are REMANDED for the following action: 1. Provide the Appellant a statement of the case with respect to the issues of entitlement to service connection for a vision disorder; early obstructive lung disease, breathing problems, and chronic cough; lung cancer; brain cancer; and headaches, as well as the issue of entitlement to an initial compensable rating for fatigue, all for the purpose of accrued benefits. The Appellant should be informed of the actions necessary to perfect an appeal on these issues. Thereafter, these issues are to be returned to the Board only if an adequate and timely substantive appeal is filed. 2. Once appropriate appellate action has been completed on the accrued claims or the appeals are closed for failure to respond, readjudicate the Appellant’s claim for service connection for the cause of the Veteran’s death. If the claim for service connection for the cause of the Veteran’s death remains denied, the Appellant and her representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel