Citation Nr: 19123737
Decision Date: 04/01/19	Archive Date: 03/29/19

DOCKET NO. 17-50 853
DATE:	April 1, 2019

REMAND

Entitlement to service connection for metastatic lung cancer is remanded.

Entitlement to service connection for the cause of the Veteran's death is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1972 to March 1974.  The Veteran died in January 2016.  The appellant is the Veteran’s surviving spouse.  

This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

Claims for accrued benefits and those claims where an appellant is substituted for a deceased claimant are distinct.  See 38 U.S.C. §§ 5121A, 5121(a).  In March 2016, the appellant submitted an "Application for DIC, Death Pension, and/or Accrued Benefits" form (VA Form 21-534EZ).  This is also considered to be a request for substitution pursuant to 38 C.F.R. § 3.1010(c)(2).  The AOJ has not adjudicated the appellant's substitution request and has adjudicated the claim for lung cancer on an accrued benefits basis.  

In Reliford v. McDonald, 27 Vet. App. 297 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant's right to choose whether she wishes to waive substitution when she files a claim for accrued benefits (i.e. VA Form 21-534).  Reliford v. McDonald, 27 Vet. App. at 304.  As a substitute claimant, the claim remains that of the deceased veteran.  Evidence obtained following the veteran's death must be considered and VA must fulfill its duties to notify and assist the appellant.  By contrast, as an accrued benefit claimant, the evidence is limited to the record on the date of the veteran's death. 

The request to substitute must be decided by the AOJ.  See 38 C.F.R. § 3.1010(e) (AOJ must decide in first instance all request to substitute); Id. (declining to find harmless error where the appellant was not provided the opportunity to waive substitution).  In this case, the Board finds that the appellant must be specifically notified about her rights to pursue the service connection claim as either a substitute or an accrued benefit claimant and then following a response, the AOJ must make a substitution determination.  Id. 

As for the service connection for cause of death claim, the Board points out that favorable action on the above claim being remanded could favorably affect the outcome of the cause of death claim.  Thus, the Board finds that the issue of service connection for cause of death is inextricably intertwined with the claim being remanded.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).  As Board action on the cause of death claim would be premature at this juncture, this matter is also being remanded.

Accordingly, these matters are REMANDED for the following actions:

1.  Contact the appellant and request clarification as to whether she is pursuing the claim for service connection for lung cancer as a substitute claimant or for accrued benefits purposes.  The appellant is reminded that if she proceeds in the appeal of the issue for accrued benefits purposes, evidence that was not in VA's possession at the time of the Veteran's death will not be considered. 

2.  Thereafter, readjudicate the claims on appeal, to include the claim for the cause of the Veteran’s death.  If any claim remains denied issue a supplemental statement of the case that includes clear reasons and bases for all determinations and afford the appellant and her representative an appropriate time period for response.



 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	N. Kamal, Associate Counsel