Citation Nr: 20002371
Decision Date: 01/14/20	Archive Date: 01/10/20

DOCKET NO. 19-08 176
DATE: January 14, 2020

REMANDED

Entitlement to accrued benefits based on the Veteran’s claim for service connection for an ear condition, to include hearing loss, is remanded. 

Introduction

The Veteran served honorably on active duty in the United States Navy during the Vietnam Era and Peacetime, from November 1972 to October 1977.  

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and August 2016 Rating Decisions by the VA Regional Office (RO) in New Orleans, Louisiana.

The Veteran died in December 2015, and the Appellant is his surviving spouse.

REASONS FOR REMAND

Entitlement to accrued benefits based on the Veteran’s claim for service connection for an ear condition, to include hearing loss, is remanded.  

On December 30, 2015, the Appellant filed VA Form 21-534EZ, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits.  A claim for death pension, compensation, or DIC by a surviving spouse is deemed to include a claim for any accrued benefits.  38 C.F.R. §§ 3.152(b)(1), 3.1000(c).  Pursuant to 38 C.F.R. § 3.1010, a claim for accrued benefits, survivors pension, or DIC by an eligible person, including a surviving spouse, is deemed to include a request to substitute if a claim for periodic monetary benefits (other than insurance and servicemembers’ indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, was pending before the RO or the Board when the Veteran died.

The matter of whether the Appellant is eligible to substitute as the Veteran is a threshold matter that needs to be addressed prior to deciding the accrued benefits claim, as the evidence considered in an accrued benefits claim where substitution has been found is more expansive than in an accrued benefits claim where there is not a valid substitute.  With some exceptions, the record is generally closed as of the date of a Veteran’s death in an accrued benefits case without substitution, meaning that evidence received by VA after the date of a Veteran’s death may not be considered.  38 C.F.R. § 3.1000, 3.1010.

The Board observes that the VA mailed correspondence to the Appellant in May 2016 advising that she would “be hearing from [the RO]” regarding her request to be substituted for the Veteran.  To date, there has been no formal finding as to whether the Appellant meets the criteria to be substituted for the Veteran.  The Board cannot make the initial determination as to whether the Appellant is eligible to be substituted for the Veteran.  38 C.F.R. § 20.101.  Thus, the issue of entitlement to accrued benefits for service connection for an ear condition, to include hearing loss, is remanded to the RO for appropriate action.     

The matter is REMANDED for the following action:

(Continued on the next page)

 

Make a formal substitution determination on the accrued benefits issue currently on appeal.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Worsham, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided.  This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.