Citation Nr: 18150016 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-09 729 DATE: November 14, 2018 REMANDED Entitlement to service connection for throat cancer, to include as due to exposure to herbicide agents, for accrued benefits or substitution purposes, is remanded. Entitlement to a rating in excess of 10 percent for shell fragment wound residual, anterolateral aspect/proximal part of the right leg with retained foreign body, for accrued benefits or substitution purposes, is remanded. Entitlement to a rating in excess of 30 percent from May 8, 2008 through February 16, 2009, in excess of 40 percent from February 17, 2009 through May 8, 2017, and in excess of 80 percent from May 9, 2017, for bilateral hearing loss, for accrued benefits or substitution purposes, is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), for accrued benefits or substitution purposes, is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1966 to April 1969. These matters come before the Board on appeal from an October 2008 rating decision. The Veteran passed away in February 2018, and the Appellant is the Veteran’s surviving spouse. A March 2018 Board decision dismissed the Veteran’s appeal of the above issues without prejudice, due to the Veteran’s death, and the matters are currently before the Board following a March 2018 claim from the Appellant for accrued benefits, which also constitutes a request for substitution. The issues on appeal are remanded for further development. When a veteran dies, an eligible person may be substituted for the Veteran to process any pending claims. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008). A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 C.F.R. § 3.1010. In lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation by an eligible person listed in § 3.1000(a)(1) through (5) is deemed to include a request to substitute if a claim for periodic monetary benefits (other than insurance and servicemembers’ indemnity) under laws administered by the Secretary, or an appeal of a decision with such a claim, was pending before the agency of original jurisdiction or the Board when the claimant dies. A claimant for accrued benefits, survivors pension, or dependency and indemnity compensation may waive the right to substitute in writing over the claimant’s signature. 38 C.F.R. § 3.1010(c)(2)) In March 2018, VA received the Appellant’s application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits. In April 2018, VA received the Appellant’s specific request for substitution as the claimant. Subsequent correspondence in August 2018 also specifically requested entitlement to accrued benefits and substitution. When adjudicating entitlement to accrued benefits, only the evidence of record, or constructively of record, at the time of death may be considered as the basis for a determination on the merits of the claim. 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. 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 substitute claimants. Thus, it is potentially to the Appellant’s benefit to have the claims on appeal adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than only for accrued benefits pursuant to 38 U.S.C. § 5121. Any eligible survivor submitting a claim for accrued benefits will be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. See also Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010) (finding that when an appellant dies during the course of an appeal to the U.S. Court of Appeals for Veterans Claims, substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal); Reliford v. McDonald, 27 Vet. App. 297, 303-04 (2015) (the appellant has the right to choose to waive substitution). The record does not reflect that a determination has been made with regard to the Appellants eligibility and request to substitute. Accordingly, the Board remands this case for the AOJ to determine whether the appellant is an eligible claimant for substitution regarding the issues on appeal. The matters are REMANDED for the following action: 1. The AOJ must adjudicate the Appellant’s request to substitute as the claimant, in lieu of the deceased Veteran, in the pending claims for entitlement to service connection for throat cancer, to include as due to exposure to herbicide agents, entitlement to a rating in excess of 10 percent for shell fragment wound residual, anterolateral aspect/proximal part of the right leg with retained foreign body, entitlement to a rating in excess of 30 percent from May 8, 2008 through February 16, 2009, in excess of 40 percent from February 17, 2009 through May 8, 2017, and in excess of 80 percent from May 9, 2017 for bilateral hearing loss, and entitlement to a rating in excess of 30 percent for posttraumatic stress disorder. A copy of the determination must be included in the record. 2. If the AOJ determines that the Appellant is eligible for substitution, send the Appellant and her representative a VA notice letter advising her of her status as a substitute claimant, explaining the difference between accrued benefits and substitution, and the evidence necessary to substantiate the claims. 3. After completion of the above and any other indicated development, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Appellant her   representative with a supplemental statement of the case. Following time for a response, the appeal should be returned to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel