Citation Nr: 1806497 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the Appellant is a valid substitute for the Veteran's increased rating claim. (The issue of whether the Veteran submitted a timely substantive appeal (VA Form 9 or equivalent) in response to the July 2009 Statement of the Case (SOC) that addressed the denial of an increased rating for the service-connected tuberculosis and the issue of entitlement to an increased evaluation for the service-connected tuberculosis prior to January 14, 2010, are addressed in a separate decision of the Board.) REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 1943 to December 1945. The Veteran died in December 2011. The appellant is the Veteran's adult daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2016, the appellant testified at a Board videoconference hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case must take into account the existence of this electronic record. REMAND Additional development is necessary with respect to the issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AOJ for action as described below. As previously noted, the Veteran died in December 2011. The Veteran's adult daughter filed a request for substitution (VA Form 21-0847) with the AOJ in February 2012, within one year of the Veteran's death. In September 2014, VA issued a regulation regarding substitution following a claimant's death, which has been codified at 38 C.F.R. § 3.1010. That regulation states that if a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a)(1-5) may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by VA, or an appeal of a decision with respect to such claim, that was pending before the AOJ or the Board when the claimant died. Upon a grant of a request to substitute, the substitute may continue the claim or appeal to completion. See 38 C.F.R. § 3.1010(a). A specific request to substitute for a claimant must be made in writing with the RO by an eligible person no later than one year after the initial claimant's death; all determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010(b), (c)(1), (e). In lieu of a specific request for substitution, a claim for accrued benefits, survivors' pension, or DIC benefits by an eligible person is deemed to include a request to substitute if a claim for periodic monetary benefits, or an appeal of a decision with respect to such claim, was pending before the AOJ or the Board when the claimant died. See 38 C.F.R. § 3.1010(c)(2). Therefore, pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010, the Veteran's daughter is entitled to a determination as to whether she is eligible for substitution, and if so, to have her claim adjudicated accordingly. The Board notes that there is no evidence in the record of the RO's determination regarding the appellant's eligibility for substitution for purposes of processing the Veteran's increased rating claim/appeal to completion. On remand, such a determination must be made. Therefore, to ensure full compliance with due process requirements, this case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed, to include informing the appellant of the information necessary to substantiate a claim for accrued benefits based on apportionment of burial and last sickness expenses under 38 C.F.R. § 3.1000(a)(1) and 38 C.F.R. § 3.1000(a)(5). 2. After completing all indicated development, adjudicate the issue of substitution in the first instance and determine if substitution of the appellant for the Veteran in his increased rating claim is proper. 3. If the request for substitution is denied, the appellant must be advised that a timely Notice of Disagreement (NOD) must be submitted to initiate an appeal to the Board as to the RO's substitution determination. 38 C.F.R. § 20.302(a). If the basic eligibility requirements are met, send the appellant appropriate notice with respect to her status as a substituted party. 4. If the appellant is deemed to be a proper substitute for continuing the Veteran's pending increased rating claim, undertake all appropriate development in relation to that claim. 5. Thereafter, readjudicate the increased rating claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations. 6. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs