Citation Nr: 21021755 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-38 659 DATE: April 13, 2021 REMANDED The petition to reopen the previously denied claim for Dependency and Indemnity Compensation (DIC), to include service connection for the cause of the Veteran's death, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1943 to November 1973 in the United States Air Force. He died in December 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision of Department of Veterans Affairs (VA) Regional Office (RO) which confirmed and continued a prior denial of a surviving spouse’s claim for DIC benefits. The Board acknowledges the representative’s request dated January 4, 2021, requesting that the case to be held open for a period of 90 days to submit additional evidence and/or argument. The 90-day period has since elapsed and not additional evidence or argument has been received. See Third Party Correspondence (January 4, 2021). Further, as this matter is subject to remand as explained below, the appellant and representative will have further opportunity to provide additional evidence and/or argument in this matter. The petition to reopen the previously denied claim for DIC, to include service connection for the cause of the Veteran's death, is remanded. The Board will address several matters that require remand of the appeal to the originating agency, which include A. Substitution: Whether the appellant may be substituted as a claimant for his diseased mother.. A death certificate dated in December1980, and signed by Dr. Colucci, states that the Veteran died on December [REDACTED], 1989 and the immediate cause of death was severe anemia of three years duration, and liver failure and anemia were listed as contributory conditions. No biopsy or autopsy was performed. In January 1990 the Veteran’s surviving spouse applied for burial benefits. In March 1990 she was awarded $300.00 in burial benefits based on nonservice-connected death. By letter dated February 27, 1990, the surviving spouse was informed that unless she filed a claim for DIC within one year from the date of death, that benefit, if awarded, would not be payable from a date earlier than the date the claim was received. On March 30, 1990, the surviving spouse’s claim, VA Form 21-534, Application for DIC was received. A May 21, 1990 rating decision denied service connection for the cause of the Veteran’s death. The surviving spouse was notified of this denial by RO letter dated June 15, 1990. She did not appeal that decision. No additional evidence was received within one year of that decision and no new service records have been received. Therefore, the May 1990 rating decision became final. VA received on August 22, 2014, a VA Form 21-4138, Statement in Support of Claim, signed by the appellant (the only surviving child of the Veteran and his wife) requesting that his mother’s “DIC” claim be expedited due to her financial need and explaining that he was the only surviving child of the Veteran and the Veteran’s surviving spouse. By letter of September 26, 2014, the RO notified the Veteran’s surviving spouse that it was working on her application to reopen her claim for DIC benefits, and notified her that, because of the prior unappealed denial of that claim, new and material evidence was required to reopen the claim. In correspondence received on October 7, 2014, the appellant stated that new and material evidence had been presented to reopen his mother’s claim for DIC benefits. By letter of October 27, 2014, VA notified the Veteran’s surviving spouse of an October 25, 2014, rating decision which denied service connection for the cause of the Veteran’s death. Unfortunately, the original appellant (M.J.), the Veteran’s surviving spouse, in this DIC matter died in November 2014. Thereafter, VA received on January 12, 2015, VA Form 21-0951, Notice of Disagreement (NOD), signed by the appellant (and not the surviving spouse) disagreeing with the October 2014 denial of service connection for the cause of the Veteran’s death. He reported that his mother died, and he wished to “subsume” the claim as a Nehmer class action member, under 38 C.F.R. § 3.816(f)(1). Following issuance of a September 2014 statement of the case (SOC), VA received in October 2014 from the appellant a VA Form 9, Appeal to the Board. Therein, he requested a videoconference at the RO, which was conducted in February 2019. A May 2019 Board decision determined that, because the appellant was not an eligible claimant, a claim for DIC, to include service connection for the cause of the Veteran’s death, was denied. That decision was appealed to the U. S. Court of Appeals for Veterans Claims (Court) which entered an Order in August 2020 vacating the Board decision pursuant to Joint Motion for Remand (JMR) for failure to address the potential “application of VA’s regulations concerning Nehmer class members [at 38 C.F.R. § 3.816] to this claim.” In this regard, 38 C.F.R. § 3.816(a) states that “[t]his section states effective date rules required by orders of a United States district court in the class-action case of Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).” Accordingly, 38 C.F.R. § 3.816 is applied only after entitlement to DIC, and the cause of death, is actually awarded and not prior thereto. However, 38 C.F.R. § 3.816(f)(1)(ii) states that if a Nehmer class member entitled to retroactive benefits dies prior to receiving such unpaid retroactive payment, such payment will be made to (i) a surviving spouse, or (ii) to the class member’s child “regardless of age or marital status.” In sum, the May 2019 Board decision was correct in determining that the appellant is not a “child” within the meaning of VA regulations for the purpose of directly receiving DIC benefits. However, under 38 C.F.R. § 3.816(f)(1)(ii) he would be entitled to receive any retroactive benefits payable to his mother prior to her death if, and only if, new and material evidence has been received to reopen the claim and, subsequently, entitlement to DIC and service connection for the cause of the Veteran’s death is actually awarded. However, in this case the NOD was filed not by the original claimant, the surviving spouse, but after her death by her only surviving son who, in substance, asked to be substituted (wishing to “subsume”) in her claim. The RO has never formally ruled on a motion for substitution. Despite the issuance of an SOC and filing of a VA Form 9, as well as presenting testimony, the Board cannot render a decision on the substitution issue in the first instance. See 38 U.S.C. § 7104(a) and 38 C.F.R. § 3.1010(e), 20.101(a); see also Reliford v. McDonald, No. 13-3048, slip op. at 5 (Vet. App. Mar. 20, 2015) (an appellant must be notified of his or her right to waive substitution). Given the above, and to ensure due process of law, remand to the originating agency is necessary so that the RO may determine in the first instance whether the son of the original appellant may be substituted as claimant after her death such that the NOD he filed on her denied claim is valid and may be pursued by him in her stead. . B. Herbicide Exposure: Whether the Veteran served in the Republic of Vietnam during the applicable period to warrant the presumption of exposure to herbicide agents. A death certificate dated in December1980, and signed by Dr. Colucci, states that the Veteran died on December [REDACTED], 1989, and the immediate cause of death was severe anemia of three years duration, and liver failure and anemia were listed as contributory conditions. No biopsy or autopsy was performed. At the time of the Veteran death he had no pending claim and was service-connected for residuals of a fracture of the left wrist, residuals of a hemorrhoidectomy, and a neoplasm of the right thigh. On March 30, 1990, VA received the surviving spouse’s DIC claim, VA Form 21-534. With respect to whether the cause of death was due to service, she reported “possible – had leukemia served in Vietnam.” A May 21, 1990, rating decision denied service connection for the cause of the Veteran’s death because his service-connected disabilities were not shown to have contributed materially or substantially to his death, and it would require a resort to speculation to conclude that his death from claimed leukemia was caused by or related to service in Vietnam. In applying to reopen the claim, the appellant has submitted a handwritten statement from Dr. S. Colucci (who signed the original [as well as apparently an amended] death certificate dated June 9, 2015, stating that he believed the Veteran “died in 1989 from acute leukemia, possibly chronic B cell leukemia which caused his severe anemia and death.” He further stated that old medical records no longer existed. An October 2014 rating decision continued the denial of service connection for the cause of the Veteran’s death on the basis that acute leukemia is not a presumptively due to any in service herbicide exposure. Specifically, effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add all chronic B-cell leukemias, including but not limited to hairy-cell leukemia and chronic lymphocytic leukemia, to the list of diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Significantly, the RO has never verified or formally conceded that the Veteran had actually served in the Republic of Vietnam, such that herbicide exposure may be presumed; but rather, the RO has only found that “acute” leukemia is not presumptively linked to herbicide exposure. The appellant has repeatedly stated that his father, the Veteran, did serve in Vietnam. In this connection, in the Veteran’s service dental records include a notation dated June 4, 1968 reflecting that the place of entry was “Tan Son Nhut AB, RVN.” Inasmuch as chronic B-cell leukemia is presumptively associated with herbicide exposure, and given that there was no such presumption at the time of the original 1990 denial, the RO should formally adjudicate in the first instance whether the Veteran served in Vietnam for the purpose of considering whether any disease enumerated as associated with herbicide agent exposure are for application here. Also, the Board observes that, if it is determined that the Veteran served in the Republic of Vietnam during the Vietnam Era, such that he was presumptively exposed to herbicides, and died of a form of leukemia which is presumptively due to such exposure, then new and material evidence is not required to reopen the claim for DIC benefits, including the cause of the Veteran’s death. See Spencer v. Brown, 4 Vet. App. 283, 288-90 (1993), aff’d, 17 F.3d 368 (Fed. Cir. 1994) (holding that when a provision of law or regulation creates a new basis of entitlement, as through liberalization of the requirements for entitlement, the claim is separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation and in such cases, de novo adjudication is warranted because the liberalizing law or regulation renders the claim legally and factually distinct from the former claim). As explained above, remand is warranted to verify, if not conceded by VA, that the Veteran served in the Republic of Vietnam during the applicable period to warrant the presumption of exposure to herbicide agents. C. New Evidence: Associate copies of documents that appear to be missing from the Veteran’s claims file, but were of record at the time of the 2014 Rating Decision and 2015 SOC. A thorough review of the records reflects that the October 2014 rating decision and the September 2015 SOC each reflects that the new evidence considered includes not only (a) a June 9, 2015, statement of Dr. S. Colucci, but also (b) an amended Certificate of Death dated April 25, 2014; (c) a statement of an attending Physician, dated June 30, 2014; and (d) a March 25, 2014, statement of Dr. S. Colucci. However, after a thorough review of all document in the Veteran’s claims file, which is currently an electronic file, the Board is unable to locate the items (b), (c), and (d), referenced above. Inasmuch as this is “new” evidence for the purpose of reopening and was apparently before the originating agency at the time of the adjudication of the claim for service connection for the cause of the Veteran’s death (as referenced rating decision appealed and SOC), remand is necessary to associate these items with the electronic claims file. The matter is REMANDED for the following action: 1. Adjudicate the appellant’s request to substitute into his deceased mother’s claim for entitlement to DIC when he filed the Notice of Disagreement in January 2015. Notice of this decision should be associated with the claims file and given to the appellant and his representative. 2. Unless the Veteran’s exposure to herbicide agents is conceded (consider: whether the dental record dated June 4, 1968 and bearing a notation of “Tan Son Nhut AB, RVN” establishes the Veteran’s presence in Vietnam), attempt to verify the Veteran’s in-service exposure to herbicide agents. If there is insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. Associate with the claims file copies of the missing items, included when this was a paper file but now absent, which are (1) an amended Certificate of Death dated April 25, 2014; (2) a statement of an attending Physician, dated June 30, 2014; and (3) a March 25, 2014, statement of Dr. S. Colucci. If necessary, contact the appellant and his attorney to request the resubmission of this evidence. All attempts to associate these items with the claims file should be documented in the claims file. 4. Readjudicate the underlying appeal. Note: If it is determined that the Veteran served in the Republic of Vietnam during the Vietnam Era, such that he was presumptively exposed to herbicides, and died of a form of leukemia which is presumptively due to such exposure, then new and material evidence is not required to reopen the claim for DIC benefits, including the cause of the Veteran’s death. See Spencer, supra. (Continued on the next page)   The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.