Citation Nr: A21020145 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210917-185869 DATE: December 16, 2021 ORDER 1. Entitlement to recognition of the appellant as the substitute party is granted. REMANDED 2. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease (IHD) for the purposes of substitution is remanded. FINDINGS OF FACT 1. The Veteran was notified in December 2018 that his claim for service connection for IHD was granted and an initial 10 percent rating was assigned effective from January 20, 2012. 2. The Veteran died in April 2019. 3. In May 2019, the Department of Veterans Affairs (VA) received a request from the appellant to be considered a substitute party, as well as a notice of disagreement (NOD) regarding the December 2018 decision. CONCLUSION OF LAW The criteria for recognition of the appellant as the substitute claimant regarding the issue of increased initial disability rating for IHD have been met. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(g)(1), 19.52(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to January 1968. The Veteran died in April 2019. The appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2020 decision of a VA Regional Office (RO). In May 2020, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2020 decision. In September 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January 2020 decision. In October 2020, the appellant's attorney at the time submitted an informal conference email. See October 7, 2020, Email Correspondence. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. This means the Board may consider only the evidence of record at the time of the January 2020 decision. The appellant's attorney Robin Hood withdrew representation in a November 2021 correspondence within 90 days of the Board's September 2021 appeal docketing letter. Therefore, the appellant is recognized as proceeding pro se. The Board's September 2021 letters acknowledging the appellant's September 2021 VA Form 10182 and docketing the appeal were returned as undeliverable. However, given that the Board letters were also sent to the appellant's attorney prior to the revocation of the representation, and the Board is granting the request for substitution, representing a full grant of the benefit sought, the appellant is not prejudiced, and the Board will proceed with the appeal. The RO should note the correct address as documented in the September 2021 VA Form 10182 and ensure that the address on outgoing envelopes is correct. 1. Entitlement to recognition of the appellant as the substitute party. If a claimant dies while a claim for any benefit under a law administered by the Secretary by VA, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. The implementing regulation further emphasizes that a claim or appeal must be pending. 38 C.F.R. § 3.1010(g)(1). A claim is considered to be pending if the claimant had filed the claim with an agency of original jurisdiction but dies before the agency of original jurisdiction makes a decision on the case. Id. Importantly, a claim is also considered to be pending if the agency of original jurisdiction had made a decision on a veteran's claim, even where the veteran had not filed a notice of disagreement, if "the period allowed by law for filing a notice of disagreement has not expired." In claims processed under the legacy system, such as the Veteran's, a notice of disagreement was timely if it was received by VA within one year of the appellant's notification of that decision. 38 C.F.R. § 19.52(a). In an October 2018 legacy rating decision, the Veteran's service-connection claim for IHD was granted, and an initial 10 percent rating was assigned, effective January 20, 2012. The Veteran was notified of the decision in a December 2018 notification letter. That decision also granted service connection for type II diabetes mellitus, assigning an initial 10 percent rating. However, this issue is not on appeal. The October 2018 decision was processed in the legacy system, and the Veteran had one year to submit his notice of disagreement. Regrettably, he died during that one-year period in April 2019. See death certificate, submitted in May 2019. VA's regulations regarding substitution explicitly state that such claims remain "pending" for the purposes of substitution when such a death occurs during this one-year period. 38 C.F.R. § 3.1010(g)(1)(i). As the appellant's May 2019 substitution request and legacy NOD were submitted within one year of the Veteran's death and within one year of the December 2018 notification letter, the Board finds that the criteria for substitution for the purpose of the "pending" claim have been met. See 38 U.S.C. § 5121A. Taylor v. Nicholson, 21 Vet. App. 126 (2007) (holding that while a veteran did not file a notice of disagreement prior to death, a claim was still pending as the time period to appeal a rating decision had not expired); 38 C.F.R. § 3.1010(g)(1). Thus, as contended by the appellant's attorney at the time in a May 2020 correspondence and the October 2020 informal conference email, the claim remained pending at the time of the Veteran's death. The request to be considered a substitute party is granted. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for IHD for the purposes of substitution. As the appellant has been found to be a valid substitute claimant, she should be formally notified of her substitute status and, as a substitute claimant, notified of her ability to submit additional evidence in support of the pending claim, the right to request a hearing, and the right ot have representation as required under 38 C.F.R. § 3.1010(f). The AOJ should then adjudicate the issue of entitlement to an initial higher rating in excess of 10 percent for IHD for the purpose of substitution in light of the Board's decision granting substitution. The matter is REMANDED for the following action: 1. Provide the appellant adequate notice of her rights as a substitute for the Veteran under 38 C.F.R. § 3.1010, including her ability to submit additional evidence in support of the pending claim, the right to request a hearing, and the right ot have representation. 2. Complete any further development deemed necessary as a result of the development above, and readjudicate the pending claims with the appellant as the substitute claimant. The RO's attention is directed to contentions submitted on June 6, 2019, labeled as Third Party Correspondence, and private medical evidence submitted on June 10, 2019, both labeled as Medical Treatment Record - Non-Government Facility. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.