Citation Nr: 21066570 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-23 644 DATE: November 1, 2021 REMANDED Evaluation of weakness of the left shoulder due to polymyositis with atrophy of the shoulder and arm currently 30 percent disabling is remanded. Evaluation of weakness of the right shoulder due to polymyositis with atrophy of the shoulder and arm currently evaluated as 40 percent disabling is remanded. Evaluation of weakness of the right hamstring muscle due to polymyositis currently evaluated as 30 percent disabling is remanded. Evaluation of weakness of the left hamstring muscle due to polymyositis currently evaluated as 30 percent disabling is remanded. Evaluation of chest atrophies due to polymyositis currently evaluated as noncompensable is remanded. Evaluation of residuals of muscle biopsy of the right hamstring currently evaluated as noncompensable is remanded. Entitlement to an earlier effective date for the evaluation of weakness of the left shoulder due to polymyositis with atrophy of the shoulder and arm, which is currently 30 percent disabling effective from October 21, 2013, is remanded. Entitlement to an earlier effective date for the evaluation of weakness of the right shoulder due to polymyositis with atrophy of the shoulder and arm, which is currently 40 percent disabling effective from October 21, 2013, is remanded. Entitlement to an earlier effective date for the evaluation of weakness of the right hamstring muscle due to polymyositis, which is currently 30 percent disabling, effective from July 8, 1996, is remanded. Entitlement to an earlier effective date for the evaluation of weakness of the left hamstring muscle due to polymyositis, which is currently 30 percent disabling, effective from July 8, 1996, is remanded. Entitlement to an earlier effective date for the evaluation of chest atrophies due to polymyositis, which is currently noncompensable, effective from April 23, 2004, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to June 1989. The Veteran passed away in September 2021 and the Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). While the record shows that the Veteran did raise certain matters prior to his death, these matters have not yet been adjudicated for substitution purposes. A substitute claimant and an accrued benefits claimant receive the same periodic monetary benefits if his or her claim is granted. VBA Fast Letter 10-30, revised April 3, 2013. Individuals who are eligible for accrued benefits are individuals who would be eligible for substitution. See 38 U.S.C. § 5121A(a)(1). The issues on appeal must be remanded for the AOJ to make a determination as to whether the appellant may qualify as a substitute claimant, and if so, to thereafter readjudicate the claims for substitution purposes as addressed more fully below. 1. Evaluation of weakness of the left shoulder due to polymyositis with atrophy of the shoulder and arm currently 30 percent disabling is remanded. 2. Evaluation of weakness of the right shoulder due to polymyositis with atrophy of the shoulder and arm currently evaluated as 40 percent disabling is remanded. 3. Evaluation of weakness of the right hamstring muscle due to polymyositis currently evaluated as 30 percent disabling is remanded. 4. Evaluation of weakness of the left hamstring muscle due to polymyositis currently evaluated as 30 percent disabling is remanded. 5. Evaluation of chest atrophies due to polymyositis currently evaluated as noncompensable is remanded. 6. Evaluation of residuals of muscle biopsy of the right hamstring currently evaluated as noncompensable is remanded. 7. Entitlement to an earlier effective date for the evaluation of weakness of the left shoulder due to polymyositis with atrophy of the shoulder and arm, which is currently 30 percent disabling effective from October 21, 2013, is remanded. 8. Entitlement to an earlier effective date for the evaluation of weakness of the right shoulder due to polymyositis with atrophy of the shoulder and arm, which is currently 40 percent disabling effective from October 21, 2013, is remanded. 9. Entitlement to an earlier effective date for the evaluation of weakness of the right hamstring muscle due to polymyositis, which is currently 30 percent disabling, effective from July 8, 1996, is remanded. 10. Entitlement to an earlier effective date for the evaluation of weakness of the left hamstring muscle due to polymyositis, which is currently 30 percent disabling, effective from July 8, 1996, is remanded. 11. Entitlement to an earlier effective date for the evaluation of chest atrophies due to polymyositis, which is currently noncompensable, effective from April 23, 2004, is remanded. Prior to the Veteran's death in September 2021, the Veteran filed an application for increased ratings, and after these increased ratings were granted, an earlier effective date for the assigned increased ratings. In October 2021, the Appellant submitted VA Form 21-534EZ, Application for Dependency and Indemnity Compensation, Death Pension, and/or Accrued Benefits. Subsequently, in an October 2021 rating decision, the claim for service connection for the cause of the Veteran's death was granted and basic eligibility to Dependents' Educational Assistance was established. The Board finds that the October 2021 rating decision did not adequately address the remaining claims on appeal for substitution purposes. More specifically, the RO did not address the issue of basic eligibility for substitution and did not make a determination as to this matter. Section 212 of the Veterans' Benefits Improvement Act of 2008, Public Law 110-389 (VBIA 2008), added 38 U.S.C. § 5121A, substitution in case of death of claimant, which provides, in part, that if a claimant dies while a claim or appeal is pending, an eligible survivor may submit a substitution request. This section applies to pending claims or appeals in which the original claimant died on or after October 10, 2008, and a request to be substituted is received within one year of the claimant's death, two requirements that were met in the present appeal. An eligible survivor may submit a substitution request by filing a VA Form 21-601 Application for Accrued Amounts Due a Deceased Beneficiary, VA Form 21-534, Application for DIC, Death Pension & Accrued Benefits by Spouse or Child; VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant; or through any other communication indicating a desire to substitute for a deceased claimant. Receipt of a VA Form 21-534EZ will be accepted as both a claim for accrued benefits and a substitution request. In summary, the law permits substitution of claimants when the original claimant dies during the pendency of the claim or appeal, on or after October 10, 2008. 38 U.S.C. § 5121A. As noted above, the Veteran died in September 2021. At the time of the Veteran's death, the claims discussed above were pending. The appellant filed an Application for Dependency, Indemnity, and Compensation (DIC), Death Pension and Accrued Benefits by Surviving Spouse or Child in October 2021, which is considered a request for substitution. 38 C.F.R. § 3.1010 (c)(2). It does not appear from a review of the current record that a substitution eligibility determination has been made by the RO. This must be accomplished on remand. The matters are REMANDED for the following action: 1. Send the appellant a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010. Afford her the opportunity to submit additional evidence or argument in furtherance of the claim. 2. Adjudicate whether the appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the claims pending at the time of the Veteran's death. Send the appellant appropriate notice with respect to her status as a substituted party, or lack thereof. 3. If the appellant is deemed to be a proper substitute for continuing the claims that were pending at the time of the Veteran's death, then readjudicate the claims after allowing her the appropriate time to submit evidence supportive of her assertions. If the benefit(s) sought remains denied, issue a supplemental statement of the case, and return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.