Citation Nr: 1807355 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-34 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for left upper extremity diabetic neuropathy with hemiparesis status post cardiovascular accident, to include the propriety of a reduction from 40 percent to 10 percent, effective July 16, 2014. 2. Entitlement to an increased rating for right upper extremity diabetic neuropathy, to include the propriety of a reduction from 50 percent to 10 percent, effective July 16, 2014. 3. Entitlement to an increased special monthly compensation (SMC) rate. ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1966 to March 1968. His awards included the Vietnam Service Medal with one Bronze Service Star. He died in May 2017. The appellant is the Veteran's surviving spouse, who was substituted as the appellant for purposes of adjudicating the claims in November 2017. See 38 U.S.C. § 5121A (West 2012) (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). These matters come before the Board of Veterans' Appeals (Board) from August 2014 (increased ratings/reduction) and August 2016 (SMC) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran sought an increased rating for his bilateral upper extremity neuropathy disabilities in September 2013. The August 2014 rating decision reduced the Veteran's left upper extremity rating from 40 percent to 10 percent, and reduced his right upper extremity rating from 50 percent to 10 percent, both effective July 16, 2014. An August 2016 rating decision continued the Veteran's then-current SMC rate and found the Veteran competent. The Veteran submitted a timely October 2016 notice of disagreement with "all" claims pending. He specifically listed acute renal failure and GI bleed; however, the Board will take his notice of disagreement as a disagreement with his SMC rate. The appellant has been granted DIC benefits. The issue(s) of entitlement to increased ratings, to include the propriety of reductions, for his right and left upper extremity diabetic neuropathy, and entitlement to an increased rate of SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On October 30, 2017, the Board issued a remand of the claims on appeal for additional development. 2. The Board issued the remand subsequent to the Veteran's death, but prior to the appellant being substituted for the purposes of adjudicating his claims. 3. As the substitution of the appellant had not yet occurred when the Board remand was issued on October 30, 2017, the decision was not in accord with due process, and the Board did not have jurisdiction to adjudicate the merits of the underlying claims. CONCLUSION OF LAW The criteria are met for vacating the Board's decision of October 30, 2017, regarding the issues of increased ratings for bilateral upper extremity diabetic neuropathy, to include the propriety of a reductions, and entitlement to a higher SMC rating. 38 U.S.C. § 7104 (a) (West 2012); 38 C.F.R. § 20.904 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Unfortunately, the Veteran died in May 2017, and the appellant was not properly substituted for his prior claims until November 2017. As a matter of law, veterans' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). However, once an eligible person has been substituted, the claims can be processed to completion. The Board erred in providing a remand on a claim after the death of the Veteran, but prior to the appropriate substitution of his surviving spouse. As such, the Board did not have jurisdiction to issue a merits decision at that time. Accordingly, the October 30, 2017 Board remand is vacated. 38 C.F.R. § 20.900(a). ORDER The Board's October 30, 2017 decision is vacated. REMAND As noted above, the October 30, 2017 Board remand was issued prematurely. The appellant has now been substituted, and this remand is properly timed. As noted above, an August 2016 rating decision confirmed and continued the Veteran's SMC rate (a rate equal to subsection (m)). He was informed of the decision on August 29, 2016. On October 11, 2016, the Veteran submitted a notice of disagreement that simply stated "all" and selected each option on the form. The Board finds this sufficient to be considered a timely notice of disagreement with the SMC rate assigned. A statement of the case has not been issued, and the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). After the Agency of Original Jurisdiction (AOJ) has issued the statement of the case, the claim should be returned to the Board only if the appellant perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). As noted above, the Veteran's claims for increased ratings for his upper extremities resulted in a reduction of his ratings from 50 percent (right) and 40 percent (left) to 10 percent (each). Generally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (2016). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29- 97. It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Here, the Veteran was not provided a rating proposing the reduction prior to the August 2014 rating decision that instituted the reduction. At the time of the August 2014 rating decision, there was no reduction in compensation by reducing the upper extremity ratings. The Veteran was receiving compensation at the 100 percent rate from March 18, 2009 onward. Prior to the August 2014 rating decision, he was receiving SMC at the (k) rate for loss of use of one eye, at the (l) rate for loss of use of both feet, and at the rate equal to (m) due to a 100 percent rating with an additional independently ratable 100 percent disability from December 12, 2010. Subsequent to the August 2014 rating decision, the Veteran's SMC rates remained the same. As such, currently the August 2014 rating decision follows 38 C.F.R. § 3.105 and VAOPGCPREC 71-91; VAOPGCPREC 29- 97. However, the Veteran's claim for an increased SMC rate is on appeal. A change to the SMC rate may impact whether the Veteran should have received additional notice (a proposed rating reduction). As the issues are inextricably intertwined, the Board will remand the increased rating/reduction claims. Additionally, the Board notes that the most recent treatment records contained in the claims file are from August 2016. The Veteran died in May 2017, and therefore, there may be more current VA treatment records available. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records between August 2016 and the Veteran's death in May 2017. All records/responses received must be associated with the electronic claims file. 2. Issue a statement of the case (SOC) regarding the claim of entitlement to an increased SMC rate. The appellant should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the appellant's increased rating/reduction claims. If any of the benefits sought are not granted in full, the appellant should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs