Citation Nr: 18154224 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-30 151 DATE: November 29, 2018 REMANDED Entitlement to accrued benefits for service connection for lung cancer is remanded. Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Appellant is the wife of a Veteran who served on active duty from May 1967 to March 1969. The Veteran passed away in April of 2013. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs Regional Office (RO) in Philadelphia, Pennsylvania. 1. Entitlement for accrued benefits for service connection for lung cancer is remanded. The Veteran submitted his claim for service connection for lung cancer in March 2013. The Veteran passed away while this claim was still pending. The Appellant attempted to substitute herself as the claimant by submitting an Application for Dependency and Indemnity Compensation (DIC), Death Pension and/or Accrued Benefits in July of 2013. 38 U.S.C. § 5121A; see 38 C.F.R. § 3.1010. However, it does not appear that the RO ever adjudicated the Appellant’s request for substitution by providing written notification of their decision to the Appellant. See 38 C.F.R. § 3.1010(e)(1). Furthermore, it does not appear that the Appellant was provided with notice of the substitution regulation. 2. Entitlement to service connection for the Veteran’s cause of death is remanded. The Veteran’s cause of death is listed as being from squamous cell carcinoma (skin cancer). In a March 2014 VA examination note, the examiner opined that it was more likely than not that the Veteran’s lung cancer was caused by cancer cells spreading from his skin to his lungs. The examiner did not offer an opinion as to whether the Veteran’s skin cancer was related to an in-service event or occurrence. The Veteran was denied service connection for his skin cancer in April 2002. The Veteran attempted to reopen his claim for service-connection for skin cancer in August 2006 by submitting new and material evidence but was denied. The Veteran again attempted to reopen his claim for service for skin cancer in January 2012 by submitted new and material evidence but was denied. Issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime. 38 C.F.R. § 20.1106 (2017); see Sheets v. Nicholson, 20 Vet. App. 463, 466 (2006) (“VA treats a claim for DIC as an entirely new and original claim and adjudicates it without regard to any prior disposition of issues during a veteran’s lifetime.”); see also Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) (“[A] DIC claim is an original claim for benefits that is independent of any underlying service-connection claim lodged by a veteran or pending at the time of the veteran’s death. Consequently, VA adjudicates a DIC claim without regard to any prior negative disposition of issues during a veteran’s lifetime and decides that claim disregarding any prior determination on the credibility or probative value of any evidence submitted in connection with a veteran’s previously denied or pending service-connection claim.” (citations omitted)), rev’d on other grounds sub nom. Hupp v. Shinseki, 329 F. Appx 277 (Fed. Cir. May 19, 2009) (unpublished). Accordingly, the Board must remand the issue of entitlement to service connection for the cause of the Veteran’s death for an addendum opinion which adequately addresses whether it is at least as likely as not that the Veteran’s skin cancer was directly caused by his service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Send the Appellant a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010. Afford the Appellant the opportunity to submit additional evidence or argument in furtherance of the claim. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Adjudicate whether the Appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the claim for service connection for lung cancer. Send the Appellant appropriate notice with respect to her status as a substituted party, or lack thereof. 3. After completing directives 1 and 2, the RO should forward the Veteran’s file to an appropriate examiner for an addendum opinion. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s skin cancer was incurred in or otherwise related to his military service? In forming their opinion, the examiner must specifically address the following evidence: *A March 2011 metal health evaluation where the Veteran reported being able to “feel the mist” from Agent Orange while serving in Vietnam. (Continued on the next page)   *A Buddy/Lay Statement from August 2011 where a fellow Veteran recounts the Veteran: (1) unloading equipment used to pump Agent Orange and other hazard liquids by hand; (2); working for 10 hours a day in an armament trailer dipping weapons in diesel fuel and air-drying them with no fans or ventilation and (3) using gasoline and diesel fuel to burn human waste which took 3 hours per shift (also noting the close proximity between the armament trailer and the latrine where waste was burnt). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk