Citation Nr: 21074927 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-30 476 DATE: December 16, 2021 REMANDED Entitlement to an extension of a temporary total (100 percent) disability rating beyond April 30, 2012, for convalescent purposes following surgery for service-connected left knee disability, for substitution or accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from February to May 1983. She passed away in 2013. The appellant is the late-Veteran's father. The appellant requested to be scheduled for a hearing before a Veterans Law Judge of the Board of Veterans' Appeals (Board), but he failed to report to a hearing scheduled in October 2021 without providing good cause for his absence. 38 C.F.R. § 20.603(d). Notably, however, it appears that the appellant may not have received a hearing notice, as review of the record indicates that notices sent to his mailing address were returned as undeliverable. In light of the Board's remand of this matter, the appellant may request a new Board hearing on remand. In August 2013, prior to her death, the late-Veteran filed a claim requesting an extension of a temporary total rating based on the need for convalescence due to complications of her left knee operation. In September 2013, following her death, the appellant filed a claim for accrued benefits, on VA Form 21-601, and indicated that he is seeking accrued benefits for reimbursement as the person who bore the expense of the Veteran's last sickness and burial. 38 C.F.R. § 3.1000(a)(5). The Board notes that receipt of a VA Form 21-601 will be accepted as both a claim for accrued benefits and a substitution request. The distinction between adjudication of accrued benefits and substitution claims is significant. Unlike in an accrued benefits claim, in a substitution claim the record is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. 38 U.S.C. § 5121A. Thus, it may be more favorable for the appellant if he is recognized as a substitute claimant. Notably, all determinations regarding requests for substitution must be made in the first instance by the Agency of Original Jurisdiction (AOJ), subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010(b), (c)(1), (e). The AOJ's decision in this regard is appealable. 38 C.F.R. § 3.1010(e)(2). In this case, a substitution determination for the appellant has not been made as is required by 38 C.F.R. § 3.1010(e). VA must comply with its own procedures related to applications for substituted claims. Reliford v. McDonald, 27 Vet. App. 297 (2015). An appellant must be provided with notice of the substitution regulation. See Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 809 F.3d 1359 (Fed. Cir. 2016) (upholding VA's regulations requiring the AOJ to make the substitution determination even if a claim is pending before the Board). Accordingly, remand of this matter is required in order for the AOJ to make a substitution determination in order to accord the appellant due process. Finally, the Board notes that the Veteran's adult daughter filed a claim for accrued benefits in August 2016. Although that claim was not received within one year of the Veteran's death, and has not otherwise been adjudicated by the AOJ, the form indicates that the late-Veteran's burial expenses were paid by her own estate. Thus, on remand, the appellant should provide all evidence in his possession supporting his claim that he paid the last sickness and burial expenses for the Veteran. Accordingly, this matter is hereby REMANDED for the following action: 1. Take all appropriate action, including contacting the appellant's representative, to determine the appellant's current mailing address. Then, send a letter to the appellant requesting that he provide all available evidence in support of his claim that he paid the Veteran's last sickness and burial expenses. 2. Also, adjudicate the issue of substitution in the first instance, specifically making a determination as to whether substitution of the appellant for the Veteran in this pending matter is proper. No action is required of the appellant until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.