Citation Nr: 1820965 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-21 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to an evaluation in excess of 20 percent for peripheral neuropathy, right upper extremity. 3. Entitlement to an evaluation in excess of 20 percent for peripheral neuropathy, left upper extremity. 4. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy, right lower extremity. 5. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy, left lower extremity. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1968 to January 1970. He died in October 2017 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A living person who would be eligible to receive accrued benefits due to a claimant under 38 U.S.C. § 5121(a) may also be eligible to be substituted as the claimant for purposes of processing a pending claim to completion. See 38 U.S.C. § 5121A (2012). Unlike accrued benefits claims, which are limited to the evidence of record at the time of the Veteran's death, a substitute claimant is able to submit additional evidence to be considered by VA that was not of record at the time of the Veteran's death. In this case, the Veteran's claims were still pending at the time of his death. In November 2017, less than one month after the Veteran's death, the appellant filed a claim for Dependency and Indemnity Compensation, which is deemed to include a request for substitution for the pending increased evaluation claims. See 38 C.F.R. § 3.1010 (c)(2) (2017). Service connection for the cause of the Veteran's death has been established. The Board notes that the appellant has only recently been substituted and has not appointed a representative at this time. Further, it is unclear whether the appellant is aware fully of the pending claims. Furthermore, review of the record reveals that a substantial amount of potentially probative evidence has been associated with the file since the last initial adjudication of these issues. Therefore, due process also requires that this appeal be remanded in order for the appellant to adequately protect all her rights as a substituted claimant. Finally, the Board acknowledges that the Veteran submitted a claim for TDIU shortly before his death, but the AOJ has not taken any action on this issue. The claim for entitlement to a TDIU is inextricably intertwined with the pending claims for increased evaluations. Therefore, consideration of the claim for a TDIU must be undertaken with the intertwined issues of increased evaluations. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. Send a notice letter to the appellant explaining how to establish entitlement to benefits and also explaining the needs for development and consideration of the TDIU issue. She should be afforded an opportunity to develop facts and evidence pertinent to that claim. She should also be informed about the opportunity to have representation assistance from a service organization or accredited attorney. 2. Then, after taking any other development deemed necessary, readjudicate the issues on appeal, including the claim for a TDIU. Consideration should also include all evidence added to the file since the last adjudication of these issues. If the benefits sought are not granted, issue a Supplemental Statement of the Case and allow the appellant an opportunity to respond. 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). 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 (2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).