Citation Nr: 21001276 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-25 283 DATE: January 7, 2021 REMANDED Entitlement to non-service-connected pension benefits for accrued benefits or substitution purposes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1942 to April 1946. He died in August 2013, and the appellant is the Veteran’s surviving daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the appellant testified during a Board hearing before the undersigned Veterans Law Judge. Factual Background Here, the appellant initially attempted to file a claim for accrued benefits in January 2014 with the assistance of a Veterans Service Officer (VSO); however, through no fault of her own the documentation was misplaced, and no formal claim was filed at that time. See January 2014 Email Correspondence and November 2014 VA Form 21-4138. On August 28, 2014, the appellant formally filed a claim VA Form 21-0847 Request for Substitution of Claimant Upon Death of Claimant. In September 2014, VA construed the appellant’s claim as one for accrued benefits and denied the claim, stating the appellant had missed the deadline for a timely application on August [REDACTED], 2014, within a year of the Veteran’s death on August [REDACTED], 2013, by eight days since she formally filed on August 28, 2014. In November 2014, the VSO with whom the appellant initially approached in January 2014 to file her claim asked the VA to reconsider it, and took responsibility for misplacing her paperwork and failing to file her claim. See November 2014 VA Form 21-4138. The appellant also initiated her appeal by filing a notice of disagreement (NOD). On February 23, 2015, the RO first sent the appellant a letter requesting necessary documentation including proof of payment toward the Veteran’s last illness or burial and VA Form 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary. In an April 2015 Statement of the Case (SOC), VA accepted the accrued benefits claim as being timely filed but continued to deny the claim as the appellant did not meet the definition of “child” for VA accrued benefits purposes and she failed to respond to the February 2015 request for documentation regarding a claim based on reimbursement. Subsequently, the appellant did not perfect her appeal by submitting a VA Form 9 by September 3, 2015, within the remainder of the one-year period from the date of mailing the September 2014 decision. Critically, however, on February 12, 2016, within one year of the initial notification of the deficiency in her accrued benefits application, the appellant furnished evidence of last sickness and burial expenses she incurred for the Veteran. Pursuant to 38 C.F.R. § 3.1000(c)(1), if an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the category of eligible persons of this section and that circumstances exist which make the claimant the specific person entitled to payment of all or part of any benefits which may have accrued, VA shall notify the claimant: (i) Of the type of information required to complete the application; (ii) That VA will take no further action on the claim unless VA receives the required information; and (iii) That if VA does not receive the required information within 1 year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application. 38 C.F.R. § 3.1000(c)(Emphasis added). Here, as the appellant provided information necessary to establish her entitlement within one year of the original February 23, 2015 notification, her application was timely and should be addressed on the merits on remand. In this regard, the claims file does not reflect that the Agency of Original Jurisdiction (AOJ) has made any formal substitution determination or informed the appellant about her rights to pursue the non-service-connected pension benefits pending at the time of the Veteran’s death as either a substitute claimant or as a claimant for accrued benefits. It is unclear from the record which route the appellant wished to pursue. Her first formal filing was notably a VA Form 21-0847 Request for Substitution of Claimant Upon Death of Claimant, which the RO erroneously did not address prior to its September 2014 decision denying her benefits on an accrued basis. In Reliford v. McDonald, 27 Vet. App. 297 (2015), the United States Court of Appeals for Veterans Claims 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) 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 evidence of record (to include evidence constructively of record) on the date of the Veteran’s death. The request to substitute must be decided by the AOJ before addressing her claim on the merits. See 38 C.F.R. § 3.1010(e) (AOJ must decide in first instance all requests to substitute); Reliford, supra at 304 (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 this non-service-connected pension benefit claim as either a substitute or an accrued benefit claimant and then following a response, the AOJ must make a substitution determination. Id. Notably, evidence has been associated with the claims file since the Veteran’s death. While these matters are on remand, if the appellant elects to proceed as a substitute claimant, to ensure that all due process requirements are met, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards any private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3)(clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Contact the appellant and request clarification as to whether she is pursuing the Veteran’s unadjudicated claim as a substitute claimant, or for accrued benefits purposes. The appellant is reminded that if she proceeds in the appeal of those issues for accrued benefits purposes, evidence that was not in VA’s possession at the time of the Veteran’s August 2013 death will not be considered. 2. If the appellant elects to proceed as a substitute claimant, and substitution is granted, furnish to appellant a letter requesting that she provide information concerning, and, if necessary, authorization to enable VA to obtain, any other additional evidence pertinent the issue on appeal that is not currently of record. Specifically request that appellant furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the matters within the one-year period). 3. Obtain all identified records. If any records sought are not obtained, notify the appellant and her representative. 4. Then readjudicate the claim on the merits, conceding the appellant’s claim as timely filed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.