Citation Nr: 21005694 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-26 436 DATE: February 2, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC), under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for left shoulder glenohumeral joint arthritis is dismissed. Entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for right shoulder glenohumeral joint arthritis is dismissed. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to an initial rating in excess of 80 percent for bilateral hearing loss for the time period prior to May 18, 2015 for substitution purposes is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another for the time period prior to May 18, 2015 for substitution purposes is remanded. Entitlement to SMC for loss of use of both ears for the time period prior to May 18, 2015 for substitution purposes is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) for substitution purposes is remanded. Entitlement to service connection for a left knee disability for substitution purposes is remanded. Entitlement to service connection for a left hand disability for substitution purposes is remanded. Entitlement to a compensable rating for service-connected right hand arthritis of multiple joints for substitution purposes is remanded. Entitlement to service connection for a right elbow disability for substitution purposes is remanded. FINDINGS OF FACT 1. The Veteran was not in receipt of a total rating for 10 continuous years prior to his death, was not rated as totally disabling continuously since his release from active duty and for at least 5 years preceding death and was not a prisoner of war. 2. The Board does not have jurisdiction to consider the appeal for accrued benefits, based on the Veteran’s entitlement to service connection for left shoulder glenohumeral joint arthritis. 3. The Board does not have jurisdiction to consider the appeal for accrued benefits, based on the Veteran’s entitlement to service connection for right shoulder glenohumeral joint arthritis. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC for the cause of the Veteran’s death under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.159, 3.361 (2019). 2. The criteria for entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for left shoulder glenohumeral joint arthritis, have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018). 3. The criteria for entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for right shoulder glenohumeral joint arthritis, have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1953 to April 1955. He died in October 2016. The appellant filed an application for DIC and/or Accrued Benefits in November 2016, which was withdrawn in September 2017, and refiled that same month. Her appeal stems from her timely filed September 2017 application. The appellant has been accepted as a substituted claimant for purposes of seeking accrued benefits. 1. Entitlement to DIC under 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC in the same manner as if the veteran’s death were service-connected where it is shown that the veteran’s death was not the result of willful misconduct, and the veteran was (1) continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the veteran was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The Board finds the criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted. Here, the Veteran separated from active service in May 1955 and died in October 2016. Prior to his death, he was not continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least five years from the date of his separation from service, nor was he a former POW. Notably, none of the remaining claims on appeal could potentially result in an effective date of award of 100 percent benefits prior to June 2008. As such, the claim is denied as a matter of law. 38 U.S.C. § 1318. 2. Entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for left shoulder glenohumeral joint arthritis. 3. Entitlement to accrued benefits, based on the Veteran’s entitlement to service connection for right shoulder glenohumeral joint arthritis. The statutory provisions of section 5121A provide those eligible for accrued benefits with the opportunity to procedurally be substituted for deceased claimants in pending claims, enabling the surviving accrued-benefits beneficiary to proceed in the place of the deceased claimant to the completion of the original claim. See 38 U.S.C. § 5121A(a)(1) (providing that, if a claimant dies while his claim is pending, an eligible person may “file a request to be substituted as the claimant for the purposes of processing the claim to completion”). Importantly, “under section 5121A, a decision as to entitlement to accrued benefits is not restricted to consideration of the evidence contained in the claims file at the time of the deceased VA claimant’s death.” Todd v. McDonald, 27 Vet. App. 79, 89 n.5 (2014). For the time period prior to March 24, 2015 (when standardized forms became necessary to file a claim), the VA administrative claims process recognized formal and informal claims. A formal claim was one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim could have been any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim had to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits had to be demonstrated. See Brannon, 12 Vet. App. at 34-35. See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant’s submissions broadly, VA was not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” see Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see also Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). Under 38 U.S.C. § 7105 appeal to the Board had to be initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal after a Statement of the Case (SOC) was furnished to the Veteran. In essence, the following sequence was required: There must be a decision by the AOJ, the Veteran must express timely disagreement with the decision within one year of notice of the decision, VA must respond by explaining the basis for the decision to the Veteran in an SOC, and finally the Veteran, after receiving the SOC, had to complete the process by stating his/her argument in a timely-filed substantive appeal filed within one year of the notice of decision or within 60 days of the SOC, whichever was later. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. With respect to the accrued benefits claim, the Board must determine the claims that were pending at the time of the Veteran’s death. According to the appellant’s May 2019 SOC, the AOJ has determined that issues of entitlement to ratings in excess of 20 percent for right and left glenohumeral joint arthritis had been pending at the time of the Veteran’s death. The Board disagrees. In pertinent part, a May 2013 AOJ decision awarded service connection for right and left shoulder disabilities and awarded initial noncompensable ratings effective June 1, 2008, and separate 10 percent ratings effective March 10, 2012. In July 2013, the Veteran initiated a timely NOD with respect to the initial staged ratings assigned. In October 2015, the AOJ awarded “service connection” for right and left glenohumeral joint osteoarthritis and assigned 20 percent evaluations effective July 12, 2013. In so doing, the AOJ acknowledged that this award was “considered a partial grant of benefits sought on Appeal” – namely the underlying issue of the initial ratings assigned for right and left shoulder disabilities appealed by the July 2013 NOD. On October 28, 2015, the AOJ furnished the Veteran an SOC on the issue of increased evaluations for right and left shoulder glenohumeral joint osteoarthritis, previously rated as right and left shoulder conditions, as well as entitlement to earlier effective dates. The AOJ did not provide notice of appellate rights for the award of “service connection” for right and left glenohumeral joint osteoarthritis, as acknowledged in the SOC, the AOJ simply assigned a staged rating for the right and left shoulder disability claims already on appeal. Importantly, the Veteran did not submit a substantive appeal within 60 days of being furnished the October 18, 2015 SOC. And, notably, the Veteran was not deceased until October 2016. As such, the initial rating assigned for right and left shoulder disability became final prior to the Veteran’s death and no claim for an increased rating for right and left shoulder disabilities was pending at the time of this death. As such, the Board does not find jurisdiction over any claim involving higher ratings for the right and/or left shoulder disability for substitution purposes. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The appellant seeks service connection for the Veteran’s cause of death. A grant of service connection for the cause of a veteran’s death requires that a service-connected disability caused the death or substantially or materially contributed to it. 38 U.S.C. §§ 1310, 1312; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal (primary) cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to it. See 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided the production of death. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made a veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). At the time of his death, the Veteran was service-connected for hearing loss, tinnitus, arthritis of the right knee, right shoulder, and left shoulder, a left shoulder disability, a right shoulder disability, and arthritis of the right hand. Additionally, it should be noted that according to the Veteran’s rating decision codesheet dated November 2015, the following was stated: “VSR: Please invite a claim for Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Mental Disorders DBQ shows this as a diagnosis directly related to the Veteran’s service connected musculoskeletal disabilities.” By letter dated November 18, 2015, the AOJ invited the Veteran to file a formal service connection claim for an acquired psychiatric disorder but he did not reply. The death certificate lists adenocarcinoma with metastasis as the immediate cause of death. In July 2017, the appellant submitted an amended death certificate. The amended death certificate lists “adjustment disorder, arthritis, bursitis, knee prosthesis, [and] traumatic arthritis” as “other significant condition[s] considered contributing to death but not the underlying cause.” In an October 2017 VA examination, the examiner opined that the Veteran’s arthritis of the joints did not cause or substantially contribute to his cause of death. However, the examiner did not opine as to whether said conditions resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. Therefore, an addendum opinion is warranted. 2. Entitlement to an initial rating in excess of 80 percent for bilateral hearing loss for the time period prior to May 18, 2015 for substitution purposes is remanded. 3. Entitlement to SMC based on the need for aid and attendance of another for the time period prior to May 18, 2015 for substitution purposes is remanded. 4. Entitlement to SMC for loss of use of both ears for the time period prior to May 18, 2015 for substitution purposes is remanded. 5. Entitlement to TDIU for substitution purposes is remanded. When a Veteran files a claim for an increased rating, he/she is presumed to be seeking the maximum benefit under any applicable theory. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to SMC is an inferable issue anytime a veteran is requesting increased benefits. See Akles v. Derwinski, 1 Vet. App. 118 (1991). In pertinent part, the Veteran filed an application for service connection for bilateral hearing loss in October 2013. An April 2015 AOJ rating decision awarded service connection for hearing loss and assigned an initial 80 percent rating effective October 17, 2013. In May 2015, the Veteran filed a formal application for aid and attendance benefits claiming, in part, loss of use of the upper extremities. In August 2015, the Veteran submitted a formal application for TDIU benefits. See VA Form 8940 (Veteran’s Application for Increased Compensation Based on Unemployability). He amended this filing in October 2015 to include his service-connected shoulders, right knee, right hand and hearing loss disabilities claiming unemployability since 1990. The AOJ obtained an additional VA examination and as a result, issued a November 2015 rating decision which awarded a 100 percent schedular rating for hearing loss effective May 18, 2015. The AOJ also awarded SMC based on aid and attendance, as well as SMC based on loss of use of both ears, effective May 18, 2015. In so doing, the AOJ indicated that the Veteran had filed a new claim for benefits on May 18, 2015. However, the basis for the higher rating for hearing loss was an additional VA examination obtained within one year of the April 2015 AOJ rating decision which granted service connection for hearing loss and assigned an 80 percent rating. As such, this was a readjudication of the initial rating for bilateral hearing loss based upon receipt of new and material evidence per 38 C.F.R. § 3.156(b). As such, the claim for a higher initial rating for hearing loss did not become final prior to the Veteran’s death in October 2016. The Board further notes that, as of October 2015, the Veteran had an appeal pending with respect to the initial ratings assigned for both shoulders with an effective date of claim of June 1, 2008 (although this appeal expired in December 2015). As such, the issue of TDIU had never been adjudicated and remained pending at the time of the Veteran’s death. Additionally, the award of SMC benefits effective May 18, 2015 did not provide the potential maximum amount of allowable benefits given that the claims were potentially pending with effective dates prior to May 18, 2015. Notably, the AOJ partially recognized these as pending claims in an April 2017 rating decision. 6. Entitlement to service connection for a left knee disability for substitution purposes is remanded. 7. Entitlement to service connection for a left hand disability for substitution purposes is remanded. A November 2015 AOJ rating decision denied service connection for arthritis of the left hand and left knee. As these claims did not become final prior to the Veteran’s death, the appellant may be substituted for accrued benefit purposes. The AOJ recognized these as pending claims in an April 2017 rating decision. 8. Entitlement to service connection for a right elbow disability for substitution purposes is remanded. In August 2013, the Veteran filed a service connection claim for a right elbow condition. This claim was not adjudicated prior to his death and, as such, remained pending at the time of his death. 9. Entitlement to a compensable rating for service-connected right hand arthritis of multiple joints for substitution purposes is remanded. In July 2013, the Veteran filed a claim for an increased rating for his service-connected right hand condition – coded as right hand arthritis of multiple joints. An April 2015 AOJ rating decision addressed a claim denying service connection for “condition of right hand and fingers” but did not address a higher rating for the service-connected “right hand arthritis of multiple joints.” The increased rating claim was not adjudicated prior to his death and, as such, remained pending at the time of his death. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate medical professional (M.D.) to address whether the Veteran’s service-connected arthritis of the joints and adjustment disorder contributed to the cause of his death. Following a review of the claims file, the examiner should opine whether it is at least as likely as not that the Veteran’s adjustment disorder and arthritis of the joints resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. The examiner should directly address the September 2015 VA mental health examination report noting that the Veteran had been extremely hesitant to seek medical or other assistance, and whether this materially contributed to the cause of his death. In doing so, the examiner should consider the Veteran’s amended death certificate. A rationale must be provided for all opinions in the report. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 2. Thereafter, the AOJ should adjudicate the Veteran’s pending claims listed in this remand. If any benefit sought on appeal remains denied, furnish the appellant and her representative a supplemental statement of the case and allow an appropriate time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.