Citation Nr: 21010562 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-11 370 DATE: February 25, 2021 REMANDED Entitlement to service connection for a seizure disorder, to include as secondary to medication taken for residuals of oral surgery, for the purposes of accrued benefits, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of oral surgery, for the purposes of accrued benefits, is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1992 to August 1995. Unfortunately, the Veteran passed away in May 2014. The appellant is the Veteran’s surviving parent. A Board hearing was held before the undersigned Veterans Law Judge in February 2020, and a transcript of the hearing is of record. Accrued Benefits Under 38 C.F.R. § 3.1010(c)(2), in lieu of a specific request for substitution, a claim for accrued benefits, survivors’ pension, or DIC benefits by an eligible person is deemed to include a request to substitute if a claim for periodic monetary benefits, or an appeal of a decision with respect to such claim, was pending before the agency of original jurisdiction (AOJ) or the Board when the Veteran died. A claim is considered to be pending if, at the time of the Veteran’s death, the AOJ has made a decision on the claim, but the Veteran has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired. See 38 C.F.R. § 3.1010(g)(1)(i). Notably, a substituted party may continue the claim or appeal to completion, and unlike in an accrued benefits claim where the record is closed on the date of the Veteran’s death, the record remains open for submission and development of any pertinent additional evidence. Historically, in September 2012, the Veteran filed a claim for entitlement service connection for a seizure disorder, as secondary to medication for residuals of oral surgery, and a claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of oral surgery in September 2012. See September 2012 VA Form 21-4138. The Veteran’s claims were denied in a September 2013 rating decision. The Veteran very unfortunately passed away in May 2014, which is within the period allowed by law for filing a notice of disagreement with the September 2013 rating decision. The appellant timely submitted an inferred claim for substitution based on her application for DIC, including accrued benefits and death compensation. See June 2014 VA Form 21-535. In a February 2015 letter, VA notified the appellant that the claim for accrued benefits was denied because the Veteran was not owed any money at the time of death. However, as discussed above, the Veteran’s September 2012 claim for entitlement to service connection for a seizure disorder, as secondary to medication for residuals of oral surgery, and entitlement to compensation under 38 U.S.C. § 1151 for residuals of oral surgery was still pending before the AOJ. The appellant submitted a timely notice of disagreement with the February 2015 VA decision. See July 2015 notice of disagreement. In this case, it does not appear the AOJ has addressed the issue of substitution, nor has it issued a Statement of the Case (SOC) addressing accrued benefits. 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). Accordingly, the remand is necessary for the AOJ to address the issue of substitution prior to adjudicating the appellant’s claim for accrued benefits on the merits in a SOC under Manlincon v. West, 12 Vet. App. 238 (1999). Service Connection for Cause of Death & DIC under 38 U.S.C. § 1151 The Board sincerely regrets the additional delay, but finds remand is necessary for additional development concerning the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death and/or entitlement to DIC under the provisions of 38 U.S.C. § 1151. With respect to entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to her death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was causally related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In this case, the Veteran’s death certificate lists pulmonary thromboembolism as the immediate cause of death, and other significant conditions contributing to death as dilated cardiomyopathy and atherosclerotic coronary disease. The appellant asserts that the Veteran’s service-connected hidradenitis suppurativa caused or substantially contributed to the Veteran’s death. See February 2020 hearing transcript; see also March 2020 correspondence from the appellant’s attorney. The appellant indicated the Veteran was prescribed Accutane, which required her to also take birth control pills, and that the birth control pills caused the blood clots that resulted in the Veteran’s death. See Wanner v. Principi, 17 Vet. App. 4, 8 (2003) (a claim of service connection due to medication taken for a service-connected disease or injury is a valid theory of entitlement). A medical opinion was obtained in August 2016 concerning the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death. Dr. D.R. opined that the Veteran’s prescribed medication for her service-connected hidradenitis suppurativa did not cause or contribute to her death. However, in the medical opinion, Dr. D.R. referenced a June 14, 2014 dermatology specialist note, the context of which is not entirely clear, that does not appear to be associated with the claims file. It is also unclear whether additional outstanding VA treatment records, in particular dermatology records, have not been associated with the claims file. Before an informed decision can be made, the Board finds remand is necessary to obtain any outstanding VA treatment records, and to obtain a new medical opinion concerning entitlement to service connection for cause of the Veteran’s death taking into consideration the appellant’s contentions. The appellant’s attorney also asserts entitlement to DIC under the provisions of 38 U.S.C. § 1151. As the development ordered above may result in additional evidence that can have a bearing on the outcome of the claim, the Board will defer adjudication of the appellant’s compensation claim under 38 U.S.C. § 1151 at this time. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include specifically dermatology notes. With any assistance needed from the appellant, attempt to obtain any relevant private treatment records pertaining to the issues on appeal, to include dermatology notes that have not been associated with the claims file. 2. Adjudicate whether the appellant is eligible to substitute for the Veteran for the purpose of continuing the Veteran’s pending claims for entitlement to service connection for a seizure disorder, as secondary to medication for residuals of oral surgery, and entitlement to compensation under 38 U.S.C. § 1151 for residuals of oral surgery. Send the appellant appropriate notice with respect to her status as a substituted party, or lack thereof. Then, readjudicate the appellant’s accrued benefits claims in a Statement of the Case. 3. Following the above development, and any additional development deemed necessary, obtain a VA medical opinion from an examiner with appropriate expertise. Based on a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected hidradenitis suppurativa, to include any medication taken to treat the disease, singly or jointly with some other condition was the immediate or underlying cause of death; contributed substantially or materially to the Veteran’s death; or, aided or lent assistance to the Veteran’s death. Please consider the Appellant’s assertion that the Veteran was prescribed Accutane, which required her to also take birth control pills, and that the birth control pills caused the blood clots, or a clotting condition that resulted in the Veteran’s death. (Continued on Next Page) 4. Readjudicate the issues on appeal, which include entitlement to service connection for the cause of the Veteran’s death, and entitlement to DIC under 38 U.S.C. § 1151. If the benefit sought remains denied, issue the appellant and her attorney a supplemental statement of the case and inform the appellant of her appeal options. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.