Citation Nr: 21065288 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-28 531 DATE: October 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include on an accrued benefits basis, is remanded. Entitlement to burial benefits, to include nonservice-connected and service-connected burial benefits, is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Marine Corps from August 2013 to June 2016. He dies in November 2016. His mother, the appellant in the present matter, filed a claim of entitlement to burial benefits in December 2016. The instant matter is on appeal from a February 2017 decision. In July 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran's claim of entitlement to service connection for a mental health condition, later listed as cluster b personality traits in the pertinent rating decision, to a claim of entitlement to service connection for an acquired psychiatric disorder as reflected in the issues section above. See id. at 5 (the claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed..."). Similarly, the Board is broadening the appellant's claim of entitlement to burial benefits to include both nonservice-connected and service-connected burial benefits. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled, and "the Board must consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record." Walton v. Wilkie, No. 18-7031, 2020 U.S. App. Vet. Claims LEXIS 214, at *6 (Vet. App. Feb. 6, 2020); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons, supra. In the present case, the appellant has repeatedly expressed the belief that her son's acquired psychiatric disorder, which she related to his suicide in November 2016, was incurred during active duty service. Furthermore, a February 2017 deferred rating decision discussed the issue of service connection for the cause of the Veteran's death, but failed to include this determination in the rating decision to the appellant. Therefore, in light of the above, the Board has recharacterized the appellant's claim to include consideration of both nonservice-connected and service-connected burial benefits. 1. The claim of entitlement to service connection for an acquired psychiatric disorder, to include on an accrued benefits basis, is remanded. The Board sincerely regrets the additional delay, but remand is necessary in order to issue a Statement of the Case on this issue. Prior to his passing, the Veteran filed a claim of entitlement to service connection for a mental health condition, to include anxiety and depression. This issue was denied in a September 2016 rating decision, which was purportedly mailed in October 2016. The Veteran passed away from a self-inflicted gunshot wound in November 2016 prior to initiating an appeal on this issue. In December 2016, his mother filed a claim of entitlement to burial benefits, which were denied in February 2017. In her March 2017 Notice of Disagreement, she objected both to the denial of burial benefits and discussed her son's pending claim pertaining to his claimed mental health condition. She has repeatedly expressed the belief that his acquired psychiatric disorder was related to his active duty service. The Board finds that this Notice of Disagreement may be broadly construed to also pertain to the claim of entitlement to service connection for an acquired psychiatric disorder. See Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000) (holding that all communications should be liberally construed). As the Notice of Disagreement was filed within the one-year period following the rating decision, it is also timely. The Regional Office, however, has not yet issued a Statement of the Case (SOC) as to this issue. The Regional Office is required to send the appellant a SOC as to this issue in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. The failure to issue a SOC is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). For reference, when adjudicating entitlement to accrued benefits, only the evidence of record, or constructively of record, at the time of death may be considered as the basis for a determination on the merits of the claim. When a properly qualified substitute claimant continues the pending claim in the footsteps of the veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substitute claimants. Thus, it is potentially to the appellant's benefit to have the claims on appeal adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than only for accrued benefits pursuant to 38 U.S.C. § 5121, if she is so qualified. The record does not reflect that a determination has been made with regard to the appellant's eligibility, but such should be conducted in conjunction with the forthcoming SOC. 2. The claim of entitlement to burial benefits, to include nonservice-connected and service-connected burial benefits, is remanded. As the appellant is asserting entitlement to both nonservice-connected and service-connected burial benefits, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Send the appellant and her representative a statement of the case (SOC) that addresses the issue of entitlement to service connection for an acquired psychiatric disorder, to include on an accrued benefits basis. If the appellant perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Based upon the result of the above, conduct any appropriate development as indicated, to include obtaining complete private mental health treatment records as reported in the claims file. (Continued on the next page) 3. Following completion of development, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and her representative an opportunity to respond, and return the case to the Board. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.