Citation Nr: 18149301 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-43 651 DATE: November 9, 2018 REMANDED The claim of entitlement to service connection for liver cancer, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for liver transplant, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for skin pigmentation discoloration, 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 hepatitis C, for accrued benefits purposes, is remanded. The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. The claim of entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to November 1971. He died in June 2014. The appellant is his adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from two decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a December 2014 rating decision, the RO denied the appellant’s claims for accrued benefits and service connection for the cause of the Veteran’s death. In a January 2015 decision, the RO denied the claim for burial benefits. The appellant filed a notice of disagreement (NOD) as to both decisions in February 2015. The RO issued a statement of the case (SOC) in September 2015 addressing all of the claims on appeal and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2015. Regarding the matter of representation, in July 2014, the appellant submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in favor of the American Legion. However, that form was never signed by a representative of the American Legion. As such, without a properly executed appointment of a representative, the Board now recognizes the appellant as proceeding pro se (unrepresented) in this appeal. However, as explained below, the claims on appeal are being remanded, and the appellant will have an opportunity to appoint a representative, if she so choses. 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 claims of entitlement to accrued benefits, the Board notes that several unadjudicated claims for service connection, 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 September 2014, the appellant filed a timely VA Form 21-07847, Request for Substitution of Claimant upon Death of Claimant. 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 claims 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. Regarding the claims for burial benefits and service connection for the cause of the Veteran’s death, those claims are inextricably intertwined with the claims for accrued/substitution 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 burial benefits and cause of death claims, at this juncture, would be premature. Hence, a remand of those matters is warranted, as well. While these matters are on remand, 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. The matters are hereby REMANDED for the following action: 1. Inform the appellant that she failed to properly execute her 2014 VA Form 21-22, Appointment of Veterans Service Organization as Claimants Representative, in favor of the American Legion and inform her that she may elect to choose a representative. 2. 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 2014 death will not be considered. 3. Furnish to appellant (and any properly-designated representative) 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. 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). 6. 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