Citation Nr: A21016847
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 200617-96098
DATE: October 18, 2021

REMANDED

The appeal as to whether the Veteran's surviving parent (E. E.) is a valid substitute for purpose of continuing the appeal for service connection for aortic aneurysm is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from March 1984 to October 1987.  The Veteran died in March 2019.  E. E. filed this case as the Veteran's surviving parent.

An administrative decision was issued under the modernized review system, also known as the Appeals Modernization Act (AMA), in June 2020 denying E. E.'s request for substitution.  The Agency of Original Jurisdiction (AOJ) denied the request because there were no pending claims or appeals at the time of the Veteran's death.  In June 2020, E. E. submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by E. E. or her representative at the hearing on June 2, 2021 or within 90 days following the hearing.  38 C.F.R. § 20.302(a).

All determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302.  See 38 C.F.R. § 3.1010 (b), (c)(1), (e) (2020).

Review of the claims file also shows that rating decisions were issued under the legacy system in June 2011 and January 2012 denying the issue of entitlement to service connection for aortic aneurism.  In June 2012 the Veteran submitted a timely NOD.  In December 2013, the AOJ issued a SOC.  In February 2014, the Veteran submitted a timely substantive appeal via a VA Form 9 and the case was certified to the Board in March 2016 via a VA Form 8.  In November 2016, the Veteran testified at a Travel Board hearing before a member of the Board.  In November 2017, the Board remanded the case for additional evidentiary development.  The AOJ completed the requested development and readjudicated the case in an April 2018 supplemental statement of the case (SSOC); however, the case was never returned to the Board for appellate review prior to the Veteran's death.

In light of the pending claim for entitlement to service connection for aortic aneurism at the time of the Veteran's death, the AOJ should have initially determined whether the Veteran's surviving parent (E. E.) was a valid substitute for purpose of continuing the appeal prior to the AOJ decision on appeal. 

The matter is REMANDED for the following action:

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Adjudicate whether the Veteran's surviving parent (E. E.) was eligible to substitute for the deceased Veteran for the purpose of continuing the appeal for entitlement to service connection for aortic aneurism.

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Carter, 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.