Citation Nr: 21015241 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-62 443A DATE: March 17, 2021 REMANDED Entitlement to service connection for hypertension for accrued benefits purposes is remanded. Entitlement to revision of the November 2005 rating decision on the basis of clear and unmistakable error (CUE) for accrued benefits purposes is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from February 1954 to February 1956 and from January 1969 to January 1975. The Veteran died in September 2008. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying revision of the November 2005 rating decision which denied service connection for hypertension on the basis of clear and unmistakable error (CUE) and denying entitlement to accrued benefits. The appellant filed a timely notice of disagreement in September 2016. At the time of his death in 2008, the Veteran had the following service-connected disabilities: tinnitus, rated as 10 percent from April 2001; residuals of right gastrocnemius muscle and bilateral hearing loss, rated as noncompensable from January 1975. In July 2001, the RO denied service connection for hypertension. The RO noted that it had considered service treatment records from January 1969 to January 1975 that did not show a diagnosis of hypertension but did show medication to control blood pressure. The RO also cited a statement from the Veteran that he was first diagnosed with hypertension in July 1976. In June 2005, the Veteran submitted a request to reopen a previously denied claim for service connection for hypertension. In November 2005, the RO declined to reopen the claim because no new and material evidence had been received. The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. Therefore, the Veteran did not have a pending claim for service connection for hypertension at the time of his death in 2008. In an October 2014 rating decision, the RO granted entitlement to service connection hypertension and as a contributing cause of death based in part on medical evidence received that month. In January 2015, the Appellant submitted a statement using a VA Form 9 indicating that she wanted to appeal the result of the October 2014 rating decision that did not address entitlement to accrued benefits. The appellant called attention to service treatment records including a 1978 physical examination that showed hypertension. She contended that the Veteran had been recalled to active duty at that time and that these records should have caused the RO to reconsider the claim under the provisions of 38 C.F.R. § 3.156 (c) for newly received service department records. In March 2016, the RO in part denied revision of the July 2001 rating decision on the basis of clear and unmistakable error and the November 2005 rating decision that declined to reopen the claim. The RO also found that the Veteran did not have a pending claim at the date of his death and therefore, entitlement to accrued benefits was not warranted. The Appellant expressed timely disagreement signed in May 2016 that was marked as received in September 2016. In November 22, 2017 a rating action was generated and placed in the file. It contains no information in the REASONS FOR DECISION section. The accompanying code sheet provides the information that this is “FOR PAYMENT OF ACCRUED BENEFITS ONLY This rating was prepared after the veteran’s death and is based on evidence on file at the time of death.” The code sheet, however, continues to list hypertension as a non-service connected disorder and does not provide other information concerning any payment of benefits. It does not appear that these were forwarded to the Appellant. Five days earlier , on November 17, 2017, a statement of the case denied entitlement to accrued benefits, finding that the Veteran had no pending claims at the time of his death, and declining to revise a November 2005 rating decision on the basis of clear and unmistakable error; that earlier decision (2001) had denied service connection for hypertension. The Board finds that the November 22, 2017 documents were incomplete, erroneous and not forwarded to the Appellant; the statement of the case is the correct adjudication. On November 24, 2017, the Appellant submitted a substantive appeal on the issue of entitlement to accrued benefits. In correspondence in June 2018, the RO wrote that a decision on her September 2016 notice of disagreement had been made and was approved, that a 10 percent rating was assigned for a period prior to the Veteran’s death, that she was receiving monthly payments, but that it was not clear whether she had received a lump sum payment. In a September 2018 rating decision, the RO granted accrued benefits noting that it was correcting the November 22, 2017 rating decision with information that had been left out and referred to an unspecified earlier grant of accrued benefits. The analysis discussed only service connection for the cause of death. Although there has been some confusion as to whether the granting was for tinnitus or hypertension, the Board notes that the reasons for decision provided by the RO specifically refers to an October 2014 VA medical opinion which stated it was at least as likely as not that hypertension contributed to the Veteran’s death as hypertension is a well-known risk factor for coronary artery disease. Additionally, the RO noted that a review of the Veteran’s claims file showed evidence of hypertension with elevated blood pressure during service. There was no evidence to suggest that the appellant or her representative was notified of this decision or disagreed with the denial of accrued benefits based on service connection for the Veteran’s hypertension. In November 2018, the appellant submitted a statement in support of claim stating that she disagreed with the RO’s rating decision denying her claim for accrued benefits based on service connection for the Veteran’s hypertension. See VA 21-4138, November 2018. The Appellant clearly understood that she was not in receipt of accrued benefits. Additionally, the appellant states that she is unaware of where the CUE claim came from and that she was not even certain that it applies to the accrued benefits claim. The Appellant renewed her contention that the Veteran was recalled to active duty in 1978 to attend the Air Force War College, that a 1978 examination showed that he had been taking medication for control of blood pressure for three years which would have started while he was on previous active duty and that this record should have triggered a review under 38 C.F.R. § 3.156 (c) as new service department record. An issue is whether a survivor has standing to pursue a claim for revision of a rating decision on the basis of CUE in the context of accrued benefits when that decision was issued during the Veteran’s life and not appealed. See Haines v. West, 154 F.3e 1298, 1301 (Fed. Cir, 1998). In September 2019, these matters were before the Board. The agency of original jurisdiction (AOJ) was directed to specifically set out what accrued benefits have been allowed, to include a discussion of the appellant’s contention that the benefits heretofore granted have been based on evidence in VA’s constructive possession, but not before the VA at the time of the denials of service connection for hypertension. In November 2020, these matters were again before the Board. The Board found that the AOJ had not complied with the September 2019 Board directives and again remanded these matters. The AOJ was directed to (1) notify the appellant in writing of what accrued benefits were specifically awarded in the September 2018 rating decision and whether those benefits were paid; (2) contact the appellant and/or the appellant’s representative to determine whether the appellant’s November 2018 statement was not a withdrawal of the CUE claim; and (3) if the statement was not a withdrawal of the CUE claim, address the appellant’s contention that she has standing and that VA was in constructive possession of medical evidence, but not before VA at the time of denials of service connection for hypertension. In December 2020, the RO notified the appellant that the September 2018 rating decision was in error and was never processed. See Correspondence, December 2020. Additionally, the RO stated that the appellant’s appeal for accrued benefits was still under appeal. A December 2020, the appellant was contacted by a VA representative and informed that the September 2018 rating decision was null and void, and no accrued benefits were awarded from that decision. See VA 27-0820, December 2020. The appellant stated that her CUE statement was not a withdrawal request and that she wished to continue her appeal. Although, two of the November 2020 Board directives were completed, to date, there has not been compliance with the September 2019 Board directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); See VA 21-0820, January 2020. While additional delay is regrettable, the Board finds that another remand is required to fairly decide the appellant’s claim. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2018); 38 C.F.R. § 20.900(c) (2020). The matters are REMANDED for the following action: 1. This appeal will have been remanded by the Board three times to comply with remand instructions. See Stegall, 11 Vet. App. at 271. Expeditious treatment and substantial compliance with remand directives are required. 2. The AOJ must address the appellant’s CUE claim and must address: a. The appellant’s contention that she has standing as a survivor to file a claim for CUE in a decision issued and not appealed during the Veteran’s lifetime; and if so, b. That VA was in constructive possession of medical evidence including new service department records, not previously considered, that existed but were not before VA at the time of denials of service connection for hypertension, and that there was error in not reconsidering the Veteran’s claim under 3.156(c). Also included should be a specific finding as to any benefits due and to be paid and the time period involved in the payment of said benefits. This information should be associated with the claims file and provided to the appellant and her representative. Information should also be solicited to determine if the detailed findings set out satisfy the appeal. (continued next page) 3. The Appellant and her representative should be given time to review the above document. If it does not satisfy the appeal, the Appellant and her representative should set out information as to any continued disagreement, and the matter should be returned to the Board in accordance with applicable procedures. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.