Citation Nr: 18106936
Decision Date: 06/01/18	Archive Date: 05/31/18

DOCKET NO. 14-12 948
DATE:	June 1, 2018
REMANDED
Entitlement to service connection for arthritis of the wrists, hips, elbows, right knee, ankles, and shoulders as secondary to the service-connected psoriasis for accrued benefits purposes is remanded.
REASONS FOR REMAND
The appellant in this case, through her representative, has specifically elected to have her claim considered as one for accrued benefits under 38 U.S.C. § 5121(a).  See August 2015 correspondence; April 2018 correspondence.  In Reliford v. McDonald, 27 Vet. App. 297 (2015), the United States Court of Appeals for Veterans Claims observed that although most claimants would likely benefit from having a claim for accrued benefits interpreted as one for substitution under 38 U.S.C. § 5121A, it is also the accrued-benefits beneficiaries’ procedural right under VA procedures to choose the path by which their claims are adjudicated.  This would have the effect of excluding, among other things, a negative VA opinion which was obtained by the RO in September 2012 – more than two years after the Veteran’s death in June 2010.
In this case, the appellant, like the claimant in Reliford, was never notified that she could waive her right to substitution.  Id. at 304.  Further, although the RO referred to the claim as one for accrued benefits, it appears to have treated it as one for substitution.  In this regard, although a September 2012 rating decision and March 2014 statement of the case characterized the issue as one for “accrued benefits,” these denials depended at least in part on the September 2012 negative opinion.  Even more confusingly, the September 2012 rating decision stated that “[t]his rating was prepared after the Veteran’s death and is based on evidence in file at the time of death” despite citing to the September 2012 VA opinion.  Similarly, although in August 2015 correspondence, the representative specifically requested that the claim be considered an accrued benefits claim, the most recent October 2017 supplemental statement of the case also relied on this negative opinion.
Hence, the Board finds that this claim has not been reviewed by the RO in the first instance as a claim for accrued benefits.  Therefore, it would be prejudicial for the Board to do so prior to RO review and issuance of a supplemental statement of the case that considers only the evidence of record at the time of the Veteran’s death, without consideration of any evidence developed after that date.  38 C.F.R. § 19.31 (2017).
The matter is REMANDED for the following action:
1.  Readjudicate the issue on appeal as a claim for accrued benefits, considering only the evidence of record at the time of the Veteran’s death in June 2010, or any evidence constructively of record.  Do not consider any evidence developed, obtained, or submitted after that date unless it was constructively of record at the time of death.
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2.  If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.
 
GAYLE E. STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Matthew Schlickenmaier, Associate Counsel