Citation Nr: 21063440
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 17-37 146
DATE: October 14, 2021

REMANDED

The request to reopen the issue of entitlement to service connection for the cause of death is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1956 to November 1962, and from December 1962 to December 1968.  The Veteran passed away in January 2010.  The appellant seeks to pursue the appeal as the Veteran's surviving spouse.

In a signed June 2021 statement, the appellant indicated her wish to proceed pro se.

The request to reopen the issue of entitlement to service connection for the cause of death.

In August 2009, an application was received from the Veteran for service connection for bilateral tinnitus and cancer.  In October 2009, VA sent the Veteran a letter seeking clarification of the type of cancer being claimed, and to see if he was also claiming pension.  VA Forms 21-4142 were submitted, as well as treatment records, and information pertaining to esophageal cancer.  While the Veteran's claim was pending, and before a rating decision was issued, he passed away in January 2010.  The Veteran's death certificate lists esophageal carcinoma metastatic as the cause of death.

In February 2010, the appellant submitted an application for service connection for cause of death.  VA interprets a claim for DIC to include a request to substitute, unless the claimant waives the right to substitute in writing.  See 38 C.F.R. § 3.1010 (c)(2).  The AOJ is to determine a request to substitute in the first instance.  See 38 C.F.R. § 3.1010 (e).  However, upon review of the record, the Board does not see that a request to substitute was adjudicated by the AOJ.  Accordingly, adjudication of the appellant's claim will be deferred pending adjudication of the substitution claim. 

Therefore, the matter is REMANDED for the following action:

1. The AOJ must issue a substitution determination with respect to the August 2009 application.  Adjudication and notice must be in compliance with applicable laws and regulations, to include 38 C.F.R. § 3.1010.

2. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Foster, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.