Citation Nr: 1808837 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-21 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318. 3. Entitlement to service connection for diffuse large B-cell lymphoma, for accrued benefits or substitution purposes. 4. Entitlement to service connection for diabetes mellitus, type II, for accrued benefits or substitution purposes. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, for accrued benefits or substitution purposes. 6. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, for accrued benefits or substitution purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to July 1993. Service in Southwest Asia is indicated by the evidence of record. The Veteran died in March 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2017, the appellant presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the VA claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required. REMAND For the reasons set forth below, the Board finds that the claims pending on appeal require remand for additional development. With respect to the claim of entitlement to service connection for the cause of the Veteran's death, the appellant has asserted that the Veteran's death from diffuse large B-cell lymphoma in March 2012 was related to environmental toxin exposure during his service in Southwest Asia. See the November 2017 Board hearing transcript, pg. 4. As indicated above, the Veteran served on active duty from April 1987 to July 1993; service in Southwest Asia from December 1990 to May 1991 has been confirmed. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. Based on the assertions of the appellant as well as the Veteran's service in Southwest Asia, the Board finds that there is a reasonable possibility that a VA opinion, as to the question of whether the diffuse large B-cell lymphoma that caused the Veteran's death was related to exposure to environmental toxins, may aid in substantiating the appellant's claim. As such, the matter should be remanded in order for a VA opinion to be obtained on this question. The Board notes that the appellant's claim of entitlement to service connection for the cause of the Veteran's death is intertwined with the matter of entitlement to DIC benefits pursuant to 38 U.S.C. § 1318. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the matter of entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 must also be remanded pending further evidentiary development of the cause of death claim. In addition, the Board observes that the appellant filed a Request for Substitution of Claimant Upon Death of a Claimant in April 2012 with respect to the matters of entitlement to service connection for diffuse large B-cell lymphoma, diabetes mellitus, type II, and peripheral neuropathy of the bilateral upper and lower extremities; these claims were pending at the time of the Veteran's death. In a December 2012 decision, the RO denied the appellant's claims of entitlement to death pension benefits, as well as entitlement to service connection for diffuse large B-cell lymphoma, diabetes mellitus type II, and peripheral neuropathy of the bilateral upper and lower extremities for accrued benefits purposes. However, the RO did not address the issue of substitution in the December 2012 decision nor in any other document of record. Notably, the appellant filed a December 2012 notice of disagreement (NOD) with the December 2012 decision, including as to the death pension and accrued benefits claims. Unlike accrued benefits claims, which are limited to the evidence of record at the time of the Veteran's death, a substitute claimant would be able to submit additional evidence that was not of record at the time of the claimant's death. However, an appellant has the option to waive substitution if he or she chooses. See Fast Letter 10-30. Here, the issue of the appellant's eligibility as a substitute claimant has not been adjudicated by the AOJ, nor has the appellant been sent notice regarding substitution and her right to waive it. See Reliford v. McDonald, 27 Vet. App. 297 (2015) (holding that an accrued benefits claim was not adjudicated against the proper factual background because the appellant had not first been afforded the VA procedural right to choose the path by which her claim was adjudicated). Accordingly, these matters must be remanded so that the AOJ can seek clarification from the appellant as to whether she wishes to pursue the pending service connection claims as a substitute claimant or for accrued benefits purposes. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010) (an accrued-benefits claimant has two options: request substitution or pursue a claim for accrued benefits). Once the appellant clarifies whether she wishes to proceed with the claims for accrued benefits purposes or for substitution purposes, the AOJ should take appropriate action to include notice of the substantive law and regulations. If the appellant wishes to be a substitute claimant, the AOJ shall decide the question of substitution in a decision or decisional letter. The AOJ should then issue a statement of the case (SOC) addressing the issues of entitlement to service connection for diffuse large B-cell lymphoma, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities for substitution or accrued benefits purposes. The SOC should also address the issue of entitlement to death pension benefits. See 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The appellant must be notified of all decisions and appellate rights. Accordingly, the case is REMANDED for the following action: 1. Arrange to have an appropriate VA physician comprehensively review the record and provide opinion addressing the relationship, if any, between the Veteran's service and his death. The contents of the entire claims file to include a complete copy of this REMAND, must be made available to, and be reviewed by, the designated physician, and the opinion should include discussion of the Veteran's documented medical history and all lay assertions, to include those advanced by the appellant and on her behalf. Specifically, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater possibility) that the diffuse large B-cell lymphoma that caused the Veteran's death was related to his military service, to include his claimed exposure to environmental toxins in Southwest Asia. Complete, clearly-stated rationale for the conclusions reached must be provided. 2. Contact the appellant and request clarification as to whether she is pursuing the claims of entitlement to service connection for diffuse large B-cell lymphoma, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities as a substitute claimant or for accrued benefits purposes. 3. Once the appellant clarifies which option she wishes to pursue regarding these claims (i.e., for accrued benefits purposes or for substitution purposes) take appropriate action with respect to VA's duty to notify and assist to include notice of the substantive law and regulations and conduct any appropriate development. 4. If the appellant wishes to be a substitute claimant, the AOJ should formally determine whether she qualifies as a substitute claimant, and documentation of this determination must be associated with the electronic claims file. The appellant must be notified of this decision and of her appellate rights. 5. Then issue a SOC as to the issues of entitlement to death pension benefits, and entitlement to service connection for diffuse large B-cell lymphoma, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities for substitution or accrued benefits purposes. In connection therewith, the appellant should be provided with appropriate notice of her appellate rights. If, and only if, the appellant perfects an appeal should the matters be returned to the Board. 6. Thereafter, readjudicate the claims of entitlement to service connection for the cause of the Veteran's death, as well as entitlement to DIC compensation pursuant to 38 U.S.C. § 1318. If any benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).