Citation Nr: 19107828 Decision Date: 02/01/19 Archive Date: 01/31/19 DOCKET NO. 10-28 114 DATE: February 1, 2019 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure and as secondary to a low back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1969. The Veteran died in October 2014, and the appellant is seeking benefits as his surviving spouse. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from June 2009 and February 2010 rating decisions. In December 2012, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge. In February 2013, the Board notified the Veteran that a transcript of that hearing was not created, and he was offered the opportunity to testify at another Board hearing. In July 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript of that hearing has been associated with the record. In November 2013 and October 2014, the Board remanded the case for further development. That development has been completed, and the case has been returned to the Board for appellate review. In December 2014, the appellant requested substitution for the Veteran for the issues on appeal. 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 this case, the record does not contain any documentation that the appellant’s claim for substitution has been adjudicated by the AOJ, as is required by 38 C.F.R. § 3.1010(e) (effective October 6, 2014). The United States Court of Appeals for Veterans Claims has held that VA must comply with its own procedures related to applications for substituted claims. See Reliford v. McDonald, 27 Vet. App. 297 (2015). Rather, an August 2015 letter informed the appellant that accrued benefits had been denied. The Board emphasizes that the distinction between the two types of adjudication, accrued benefits and substitution, is significant. Unlike an accrued benefits claim, the record in a substitution claim is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. 38 U.S.C. § 5121A. A remand is therefore required for a determination as to whether there has been a valid claim for substitution, and if so, who is the valid substitute. Furthermore, it does not appear that the appellant was provided with notice of the substitution regulation. See National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, 809 F.3d 1359 (Fed. Cir. 2016) (upholding VA’s regulations requiring the AOJ to make the substitution determination even if a claim is pending before the Board). The matters are REMANDED for the following action: 1. The AOJ should send the appellant a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010 and afford the appellant the opportunity to submit additional evidence or argument in support of the claims. The AOJ should associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Thereafter, the AOJ should adjudicate whether the appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the appeal. The AOJ should notify the appellant as to her status as a substituted claimant, or lack thereof. A copy of this notification should be associated with the record. 3. If the appellant is deemed to be a proper substitute for continuing the claims on appeal, then the claims should be readjudicated after allowing her and her representative an appropriate time to submit evidence supportive of her contentions. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel