Citation Nr: 18153724
Decision Date: 11/28/18	Archive Date: 11/28/18

DOCKET NO. 16-53 322
DATE:	November 28, 2018
ORDER
Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance or due to housebound status is remanded.
REMAND
The Veteran served on active duty in the United States Army from July 1952 to June 1954.  He died in March 2017.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
In April 2017, TN submitted a Request for Substitution of Claimant Upon Death of Claimant.  However, the request for substitution has not been adjudicated by the AOJ.
There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitution of claimants in the case of death of a claimant.  38 U.S.C. §§ 5121, 5121A (2012). When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted.  See 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993) (holding that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the file until after that date).  However, 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.  See 38 U.S.C. §§ 5121, 5121A.  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 substituted claimants.
The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance.  See 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 3.1010, 20.101(a) (2017).  In light of the foregoing, the Board finds that the AOJ should make a formal determination regarding the basic eligibility for substitution of TN in the first instance with respect to the appeal and if substitution is permitted, the AOJ should readjudicate the claim on appeal as a substitution claim.
Accordingly, the case is REMANDED for the following action:
1.  Issue a decision adjudicating whether the Veteran’s spouse meets the basic eligibility requirements to substitute for the Veteran with regard to the pending claim (as listed on the title page).  If the basic eligibility requirements are met, send her appropriate notice with respect to her status as a substituted party, clearly indicating that VA recognizes her as the substituted party.  If the basic eligibility requirements are not met, inform her of this in correspondence other than a supplemental statement of the case.
2.  After completing the above action the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to TN and her representative.  After TN and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
 T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Gresham