Citation Nr: 21021528 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-43 561 DATE: April 13, 2021 ORDER The August 2018 Board decision is vacated in its entirety. REMANDED Service connection for chronic kidney disease is remanded. Service connection for diabetes mellitus, type II, is remanded. Service connection for diabetic retinopathy is remanded. Service connection for a heart disorder is remanded. FINDING OF FACT Due process requires that the Board vacate the August 2018 Board decision which dismissed the Veteran’s service connection claims due to his death, because prior to the issuance of the decision, the Veteran’s surviving spouse was properly substituted as the Appellant. CONCLUSION OF LAW The criteria are for vacatur of the August 2018 Board decision have been met.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1983 to April 1984 and from October 2001 to December 2001. He also had inactive duty for training (INACDUTRA) in the Army National Guard. This claim is on appeal to the Board of Veterans’ Appeals (Board) from a November 2013 rating decision. Vacatur An appellate decision may be vacated by the Board at any time upon request of the appellant or his or her representative, or on the Board’s own motion, due to, in pertinent part, a denial of due process. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 1. The August 2018 Board decision is vacated in its entirety The Veteran passed away in January 2017 while the claims for service connection for diabetes mellitus, type II; diabetic retinopathy; chronic kidney disease; and a heart disorder were pending. In February 2017, the Veteran’s widow filed a claim for death pension only; she did not check the boxes indicating she wished to file for Dependency and Indemnity Compensation or accrued benefits. See VA Form 21-534. However, in a December 2017 letter to the Appellant, the AOJ found her request for substitution had been granted with respect the pending service connection claims. In August 2018, the Board dismissed the Veteran’s pending service connection claims due to his death. However, due to the AOJ’s acceptance of the Appellant’s substitution, the August 2018 claim must be vacated, and the service connection claims must be adjudicated on the merits in order to afford the Appellant due process. REASONS FOR REMAND 1. Service connection for chronic kidney disease 2. Service connection for diabetes mellitus, type II 3. Service connection for diabetic retinopathy (claimed as an eye condition) 4. Service connection for a heart condition Prior to adjudication, additional development is warranted. Private treatment records dated March 2012 reflect the Veteran had a history of, in pertinent part, diabetes mellitus, type II; diabetic retinopathy; chronic kidney disease; and coronary artery disease. It was noted he was at that appointment to follow-up with his diabetes and that he continued to follow a nephrologist (for advanced renal disease) and a cardiologist (for coronary artery disease). At that same appointment, the Veteran informed the examiner he was planning on pursuing disability benefits through the Social Security Administration (SSA), which the examiner supported because he or she believed the Veteran could not return to work. Given that there may be outstanding SSA disability benefit records which may be relevant to the Veteran’s claims, a remand is required to attempt to obtain them. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Here, the first evidence of signs of diabetes (specifically elevated glucose) was in 1997, more than a decade following separation from his first period of active duty service. Thus, there is no indication that his diabetes may be related to his first period of active duty service, and therefore, no opinion in that context is required. Available records suggest that the Veteran may have been on active duty from October 2001 to December 2001; it was noted he was found non-deployable due to medication he took for diabetes. There is no Form DD-214 for this period in question and it is unclear whether the Veteran was actually on active duty during this time. Thus, on remand, the AOJ should take steps to determine whether the Veteran’s service from October 2001 to December 2001 was active duty or another form of service such as active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), or another type of qualifying service. At this time, based on the available evidence of record, the Board finds the evidence does not suggest a relationship between the Veteran’s diabetes and his military service. Significantly, there is no indication that the Veteran had any treatment related to his diabetes from October 2001 to December 2001 which would denote aggravation; rather, it was only noted that he took medication for control. Thus, absent evidence that the Veteran’s diabetes may be related to his service, the Board declines to order an examination and opinion at this time. The matters are REMANDED for the following action: 1. Attempt to obtain all relevant outstanding SSA disability benefit records and associate them with the evidence of record before the Board. All efforts to obtain these records must be continued until it is determined that the records do not exist or that further attempts to obtain them would be futile. If the records are unavailable, the AOJ must prepare a formal finding of unavailability documenting all attempts to obtain these records and associate it with the claims file. 2. Take the appropriate steps to determine the nature of the Veteran’s military service from October 2001 to December 2001. The AOJ should note whether this period was active duty, ACDUTRA, INACDUTRA, or another type of qualifying service. All attempts to obtain this information should be documented in the claims file and a formal finding should be prepared in a memorandum and associated with the claims file. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.