Citation Nr: 18157386 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-56 542 DATE: December 13, 2018 REMANDED Entitlement to special monthly compensation based on the need for aid and attendance or by reason of being housebound is denied. REASONS FOR REMAND For multiple reasons, this matter is not yet ready for appellate review. The Veteran served on active duty in the U.S. Army from November 1948 to November 1951 and in the U.S. Air Force from May 1952 to July 1969. He died in October 2016. The individual listed above as the appellant in this case has filed a claim for survivors’ benefits as the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claim for special monthly compensation based on the need for aid and attendance or by reason of being housebound. The Veteran filed a timely Notice of Disagreement (NOD), received in September 2016. A Statement of the Case (SOC) was issued in October 2016. The Veteran died later in October 2016. In November 2016, the Veteran’s spouse submitted a VA Form 9 in response to the October 2016 Statement of the Case. As best the Board can discern from the available record, the RO then simply certified the appeal to the Board. As a matter of law, however, Veterans’ claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). The law does provide a mechanism for an eligible person to file a request to be substituted as the claimant for purposes of processing a claim to completion. See 38 U.S.C. § 5121A (2014); 38 C.F.R. § 3.1010 (2017). The Agency of Original Jurisdiction (AOJ), however, is legally required to decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board. 38 C.F.R. § 3.1010(e). 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); Reliford v. McDonald, 27 Vet. App. 297 (2015) (declining to find harmless error where the appellant was not provided the opportunity to waive substitution). The record in this case does contain a request for substitution. In addition to submitting a VA Form 9 in November 2016, the Veteran’s spouse also submitted an application for dependency and indemnity compensation (DIC), death pension, and accrued benefits as the surviving spouse of the Veteran. A claim for accrued benefits by a surviving spouse filed within one year of a Veteran’s death is deemed to include a request to substitute where, as here, a claim for VA benefits was pending before the Agency of Original Jurisdiction (AOJ) when the Veteran died. 38 C.F.R. §§ 3.1010. Again, the record contains no indication that the RO has adjudicated the accrued benefits claim filed by the Veteran’s spouse nor did the RO make a determination as to whether the Veteran’s spouse qualifies as a substitute claimant. Moreover, although the RO adjudicated the issue of service connection for the cause of the Veteran’s death in a January 2017 rating decision, and purportedly sent the Veteran’s spouse a letter notifying her of its decision in January 2017, the record currently available to the Board does not contain a copy of any such January 2017 notification letter. Indeed, in February 2017, the Veteran’s spouse contacted the RO and indicated that she had not received notification of any VA decision. In March 2017, the RO sent the her a letter which purportedly included a copy of the January 2017 notification letter. It appears, however, that the RO again failed to provide any January 2017 notification letter to the Veteran’s spouse. First, a copy of the January 2017 letter is still not included in the record on appeal. Second, an April 2017 Report of General Information appears to acknowledge that the March 2017 letter did not include the January 2017 letter. Given the current state of the record, the Board can only conclude that the Veteran’s spouse has still not been notified of the January 2017 rating decision nor has the RO made any determination regarding her application for accrued benefits, nor is there any indication that the RO has considered whether the Veteran’s spouse qualifies as a substitute claimant. Finally, the Board notes that in communications related to the claim by the Veteran’s spouse for survivors’ benefits, the RO has copied the service organization designated by the Veteran as his representative prior to his death. The Veteran’s spouse, however, has not yet designated a representative before VA. This must also be remedied on remand. The matter is REMANDED for the following action: 1. Provide the Veteran’s spouse with VA Forms 21-22 and 21-22a in order for her to appoint her own representative, to include the California Department of Veterans Affairs, if she so desires. 2. Determine 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 of this decision. 3. Ensure that the Veteran’s spouse has been properly notified of the January 2017 rating decision. (Continued on the next page)   4. After conducting any necessary due process and evidentiary development, adjudicate the issue of entitlement to special monthly compensation based on the need for aid and attendance and/or housebound benefits for either accrued benefits purposes or for substitution purposes, as appropriate. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran’s spouse and any representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel