Citation Nr: 18151509 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 14-43 040 DATE: November 20, 2018 REMANDED New and material evidence having not been received, the claim to reopen service connection for erectile dysfunction, for accrued benefits purposes, is remanded. New and material evidence having not been received, the claim to reopen service connection for a thyroid condition, for accrued benefits purposes, is remanded. New and material evidence having not been received, the claim to reopen service connection for hypertension, for accrued benefits purposes, is remanded. New and material evidence having not been received, the claim to reopen service connection for tinnitus, for accrued benefits purposes, is remanded. New and material evidence having not been received, the claim to reopen service connection for arthritis of the left knee, for accrued benefits purposes, is remanded. New and material evidence having not been received, the claim to reopen service connection for arthritis of the left thumb, for accrued benefits purposes, is remanded. Entitlement to service connection for prostate cancer, for accrued benefits purposes, is remanded. Entitlement to service connection for colon cancer, for accrued benefits purposes, is remanded. Entitlement to service connection for bladder cancer, for accrued benefits purposes, is remanded. Entitlement to service connection for a pelvis disability, for accrued benefits purposes, is remanded. Entitlement to a rating in excess of 10 percent for anxiety reaction with phobic features, for accrued benefits purposes is remanded. Entitlement to special monthly compensation based on the need of aid and attendance is remanded. Entitlement to a temporary evaluation of 100 percent due to surgical treatment of a service-connected disability necessitating convalescence, for accrued benefits purposes, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active military service from September 1966 to September 1968. He passed away in November 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2011 rating decision, the RO denied entitlement to accrued benefits; such benefits stem from a June 2010 claim that the Veteran filed prior to his death. Thereafter, the appellant filed a timely notice of disagreement. A statement of the case was issued in October 2014, which addressed entitlement to service connection death benefits, which included accrued benefits. In the appellant’s substantive appeal, she indicated that she was appealing all issues identified in the statement of the case. However, the accrued benefits issues were not certified to the Board. As the appellant timely perfected an appeal, and there being no indication the appeal has been withdrawn, the Board will accept jurisdiction of the accrued benefits issues. Initially, the Board reflects that as the Veteran died in November 2010, and the appellant submitted her claim for Dependency and Indemnity Compensation (DIC) benefits in December 2010, well within a year of the Veteran’s death. Accordingly, as she is the surviving spouse, she is a proper accrued benefits claimant. See 38 C.F.R. § 3.1000. The Board, however, notes that as the Veteran died after October 2008, the appellant’s receipt of a DIC claim within one year of the Veteran’s death also doubles as a claim for substitution in this case. A review of the October 2011 rating decision, October 2014 statement of the case, and other correspondence of record since the December 2010 DIC claim does not demonstrate that the Agency of Original Jurisdiction (AOJ) has adjudicated whether the appellant is a proper substitute in this case under 38 C.F.R. § 3.1010, nor have they given her the proper due process and notice if she is found to be a proper substitute in this case. Accordingly, the Board finds that a remand is necessary in order to adjudicate in the first instance whether the appellant is a proper substitute in this case. Regardless, the Board reflects that the appellant indicated in an August 2011 VA Form 21-4142 that the Veteran was treated at the Northport VA Medical Center “until death.” The Board reflects that the Veteran died in November 2010, although the last VA treatment records associated with the claims file are from March 2010. Accordingly, it appears that there are outstanding and pertinent VA treatment records that are in constructive possession of VA at the time of the Veteran’s death, regardless of whether the appellant is a substitute or not. A remand is therefore necessary in order to obtain those records at this time. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, if the appellant is found to be an appropriate substitute in this case, the AOJ should additionally solicit information from the appellant regarding any private treatment the Veteran may have had for his claimed disorders, including any end of death treatment records from any appropriate private facility. Finally, the Board reflects that the Veteran is presumed to have been exposed to herbicides as a result of his service in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). The appellant has raised the issue that the Veteran’s death was the result of herbicide exposure during military service; he is shown to have died of cardiopulmonary arrest due to metastatic bladder cancer. Accordingly, a VA addendum medical opinion regarding whether the Veteran’s bladder cancer was the result of military service, to include presumed herbicide exposure therein, is necessary and should be obtained during remand. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. The AOJ should adjudicate whether the appellant is a proper substitute under 38 C.F.R. § 3.1010. Such decision should be associated by memorandum to the claims file and the appellant should be provided with all appropriate due process rights and notification of such decision. 2. Obtain any and all of the Veteran’s VA treatment records from the Northport VA Medical Center, or any other VA medical facility that may have treated the Veteran during his lifetime, and associate those documents with the claims file. If any VA treatment records, particularly for the period from March 2010 through the Veteran’s death, are unavailable and further attempts to obtain those records would be futile, such should be noted in a memorandum of unavailability which is placed in the claims file and the appellant should be so notified. 3. If the appellant is found to be a proper substitute under 38 C.F.R. § 3.1010, the AOJ should ask the appellant to identify any private treatment that the Veteran may have had for his psychiatric, prostate cancer, bladder cancer, colon cancer, erectile dysfunction, thyroid, hypertension, tinnitus, pelvic mass, left knee, and left thumb disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. The AOJ should ensure that the claims file is provided to an appropriate examiner for an addendum opinion as to whether the Veteran’s bladder cancer at least as likely as not (50 percent for greater probability) began in or is otherwise the result of military service, to include exposure to herbicide agents therein. The examiner is to take as conclusive fact that the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. The examiner is further reminded that merely stating that bladder cancer is not on the list of presumptive diseases for herbicide exposure is not an adequate rationale for any opinion provided. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel