Citation Nr: 21024242 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-10 202 DATE: April 22, 2021 ORDER Whether a request to reopen a previously denied service connection claim for posttraumatic stress disorder (PTSD) was received for accrued benefits purposes prior to the Veteran's death is denied. REMANDED Entitlement to an increased rating, including based upon unemployability, for service-connected ischemic heart disease is remanded. FINDING OF FACT An unadjudicated request to reopen a previously denied service connection claim for PTSD was not received prior to the Veteran's death. CONCLUSION OF LAW The criteria for an adjudication for reopening a previously denied service connection claim for PTSD for accrued benefits purposes have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran who served on active duty from November 1966 to August 1969. The Veteran died in May 2012. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in July 2020, setting aside a June 2018 Board decision and remanding the case for further proceedings. The appeal initially arose from a September 2014 letter decision by the Department of Veterans Affairs (VA). In August 2015, the appellant testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The appellant is shown to have addressed her claim that the Veteran had, in essence, requested that his PTSD claim be reopened. Her request for a Board hearing is considered to have been satisfied. The Board notes that in its July 2020 memorandum decision the Court found the appellant had abandoned the issue addressed in the June 2018 decision that, in the context of an accrued benefits claim, declined to revise a September 1984 rating decision based on clear and unmistakable error (CUE). No further action as to this specific matter is required. The Court, however, also found that a remand was required because it was not clear whether the appellant’s accrued benefits arguments pertaining to the PTSD claim were before the Board or had been withdrawn. Upon reconsideration, the Board finds that the issue as to whether a request to reopen a previously denied service connection claim for PTSD was received for accrued benefits purposes prior to the Veteran's death remains on appeal. The matter is shown to have been specifically addressed in a February 2015 statement of the case, to have been perfected by a March 2020 VA Form 9, and to have been identified at an August 2015 Board hearing as a matter for appellate review as part of a “two prong approach.” As the appellant is not shown to have withdrawn an appeal as to whether a request to reopen a previously denied service connection claim for PTSD was received for accrued benefits purposes prior to the Veteran's death, the issue remains before the Board. In light of the prior development action and the specific circumstances of the appeal as to the matter, the Board finds no additional VA action is required prior to appellate review. The Court also noted that the June 2018 Board decision did not address whether the appellant should be entitled to accrued benefits based upon a total disability rating based on individual unemployability due to service-connected disability (TDIU). The Court identified certain actions by a claimant requiring a response from VA and indicated that some VA action was necessary to address the appellant’s statements and evidence submissions in 2013. However, upon review of the record, the Board finds this request has identified matters that require additional Agency of Original Jurisdiction (AOJ) action. Therefore, the issue of entitlement to an increased rating, including based upon unemployability, for service-connected ischemic heart disease is addressed in the remand section of this decision. The Board also notes that the issue of entitlement to service connection for bladder cancer as secondary to a service-connected type II diabetes mellitus disability was specifically raised by the appellant in correspondence received in August 2013 and was not adequately addressed in the September 2014 VA letter determination or any subsequent adjudication. As the Board’s jurisdiction is limited to issues on appeal, this matter must be referred to the AOJ for any action deemed appropriate. 1. Whether a request to reopen a previously denied service connection claim for PTSD was received for accrued benefits purposes prior to the Veteran's death. Accrued benefits are periodic monetary benefits to which a payee was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Application for accrued benefits must be filed within 1 year after the date of death. 38 C.F.R. § 3.1000(c). The phrase “claim for VA benefits pending on the date of death” means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary’s claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary’s claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA’s possession on or before the date of the beneficiary’s death. 38 C.F.R. § 3.1000(d)(5). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). A survivor's accrued benefits claim is purely derivative from any benefit to which the veteran might have been entitled at his death. See Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994); aff'd, 102 F.3d 1236 (Fed. Cir. 1996); cert. denied, 117 S. Ct. 2478 (1997). Applicable VA regulations provided, generally, that previous determinations which were final and binding would be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105. The term claim was defined as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (as effective prior to Mar. 23, 2015). An informal claim could be raised by any communication or action indicating an intent to apply for one or more benefits if the communication or action identified the benefit sought. 38 C.F.R. § 3.155 (as effective prior to Mar. 23, 2015). However, medical evidence reflecting treatment and diagnosis of a condition did not constitute, by itself, an informal claim for service connection. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). However, VA is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). Based upon a comprehensive review of the record, the Board find that an unadjudicated request to reopen a previously denied service connection claim for PTSD was not received prior to the Veteran's death. The pertinent evidence of record shows service connection was denied for a nervous condition/PTSD in a September 1984 rating decision and that the Veteran submitted a notice of disagreement but did not perfect his appeal. It is noted that he did not respond to VA correspondence dated in March 1986 notifying him that if he did not respond in 30 days it would be assumed that he did not intend to complete his appeal. A subsequent May 1995 rating decision denied reopening the claim for a nervous condition. The Veteran was notified of this decision but did not appeal. Although VA records show a copy of internet-source information printed on October 21, 2010, was received by VA on April 4, 2012, prior to the Veteran’s death, there was no associated communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a PTSD benefit. As such, it may not be accepted as a claim under applicable VA law to reopen the previously denied PTSD service connection claim. The Board further finds the statements and additional evidence submitted by the appellant after the Veteran’s death may not be accepted as claims for accrued benefits or substitution purposes. See 38 C.F.R. § 3.1000(d)(5). As the criteria for an adjudication to reopen a previously denied service connection claim for PTSD for accrued benefits purposes have not been met, the appeal is denied. REASONS FOR REMAND 1. Entitlement to an increased rating, including based upon unemployability, for service-connected ischemic heart disease is remanded. As noted in the discussion above, the Court’s July 2020 memorandum decision identified matters that require additional AOJ action as to the issue of entitlement to an increased rating, including based upon unemployability, for service-connected ischemic heart disease. The Court noted that VA needed to take some on the appellant’s statements and evidence submissions in 2013. Notably, the Court queried whether a notice of disagreement or new and material evidence under the provisions of 38 C.F.R. § 3.156(b) had been submitted as to ischemic heart disease and TDIU issues from an October 2012 rating decision. The matters identified by the Court are complex. Determinations as to adequacy of notice and adequacy of a notice of disagreement are themselves appealable issues for VA compensation purpose. See 38 C.F.R. § 19.28. It is also noted that the applicable VA regulations pertinent to such determinations, including 38 C.F.R. §§ 19.25, 19.26, 19.27, were revised during this appeal. However, upon further review and scrutiny, the Board finds that addressing the question posed by the Court would be premature. The October 2012 rating decision and November 2012 notice letter pertinent to these matters are unclear as to the specific determinations made at that time. The November 2012 notice letter indicating the denial of an accrued benefits claim is clearly inconsistent with the October 2012 rating decision awarding accrued benefits for type II diabetes mellitus. Additionally, although the November 2012 notice letter noted the retroactive benefits were the result of an order in the case of Nehmer v. U.S. Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989), the basis for the service connection ischemic heart disease decision and retroactive benefits award and the appellant’s rights as to that determination are unclear. Under VA Law applicable in November 2012, as the surviving spouse and a Nehmer class member, the appellant may have been automatically substituted as the claimant under the provisions of 38 C.F.R. § 3.816, or recognized as the substitute claimant under the provisions of 38 U.S.C. § 5121A. Effective October 6, 2014, VA established regulations implementing section 212 of the Veterans' Benefits Improvement Act of 2008, which allows an eligible survivor to substitute for a deceased claimant in the decedent's pending claim or appeal of a decision on a claim. 79 Fed. Reg. 52977, 52978 (Sep. 5, 2014). Those regulations provide that a substitute is entitled to notice of VA assistance in developing claims, may raise new theories of entitlement in support of the claim, and has the same rights regarding hearings, representation, appeals, and the submission of evidence as would have applied to the claimant had the claimant not died. 38 C.F.R. § 3.1010(f). Under 38 C.F.R. § 3.1010, a claim for accrued benefits will be a motion to substitute and an accrued benefits claim. The motion for substitution will be timely if received within the notice of disagreement (NOD) window even if the original claimant had not filed one. See Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007) (explaining that, under 38 C.F.R. § 3.160(c) and (d), a “pending claim” is defined by VA regulation as “an application, formal or informal, which has not been finally adjudicated,” and a “finally adjudicated claim” is one “which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.” 38 C.F.R. § 3.1000(d) similarly defines claim pending on the date of death as a claim “filed with VA that had not been finally adjudicated by VA on or before the date of death.” The Board notes that accrued benefits are “periodic monetary benefits... to which an individual was entitled at death under existing ratings or decisions or... based on evidence in the file at date of death... and due and unpaid.” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. Under section 5121, a determination of whether accrued benefits should be awarded, “must be determined based on evidence that was either physically or constructively in the [deceased claimant's] file at the time of his death.” Ralston v. West, 13 Vet. App. 108, 113 (1999). The statutory provisions of section 5121A, on the other hand, 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”); see also Legislative Hearing on H.R. 1137, H.R. 3047, H.R. 3249, H.R. 3286, H.R. 3415, H.R. 3954, and H.R. 4084 Before the Subcomm. on Disability Assistance and Memorial Affairs of the H. Comm. on Veterans' Affairs; 110th Cong. 31 (2007) (statement of Bradley G. Mayes, Director, Compensation and Pension Service, Veterans Benefits Administration, U.S. Department of Veterans Affairs) (discussing substitution, which would allow a survivor to “step into the shoes of a claimant who has passed away” and would entail VA processing the claim as if it were the claimant’s). Significantly, “under section 5121A, a decision as to entitlement to accrued benefits is not restricted to consideration of the evidence contained in the claim file at the time of the deceased VA claimant's death.” Todd v. McDonald, 27 Vet. App. 79, 89 n. 5 (2014). Otherwise stated, an eligible person takes the place of the deceased claimant in order to process the original claim to completion, albeit for purposes of accrued benefits. In essence, the key distinction between the sections is that claims for accrued benefits under section 5121 must be adjudicated “based on evidence in the file at date of death,” while eligible accrued-benefits beneficiaries substituted in the deceased claimants’ underlying claims are afforded the ability to further develop the record, including via the Secretary’s duty to assist. Compare 38 U.S.C. § 5121(a), with 38 U.S.C. § 5121A. In Reliford v. McDonald, 27 Vet. App. 297, 302 (2015), the Court acknowledged VA Fast Letter 10-30 (Aug. 10, 2010), recognizing that it is VA’s policy to accept a VA Form 21-534 as both a claim for accrued benefits and a substitution request. The Court also honed in on language in the Fast Letter specifically permitting an accrued benefits claimant to waive the opportunity to substitute/submit additional evidence in support of the claim. The Court determined in that case, because the Appellant was never notified of her right to “waive the opportunity to substitute,” VA failed to comply with its own established procedures. The Court noted that although the “vast majority of accrued-benefits claimants would likely benefit from the Secretary’s liberal application of section 5121A to claims for accrued benefits, it is also the accrued-benefits beneficiaries’ procedural right under VA procedures to choose the path by which their claims are adjudicated.” In this case, the Veteran submitted a VA Form 21-526b, Veteran’s supplemental claim for compensation, on April 26, 2012, and died in May 2012 prior to adjudication of any pending claims. The Appellant filed her claim for accrued benefits in June 2012 using VA form 21-534. Thus, an adjudication is required to fully address the surviving spouse’s claim for accrued benefits and additional consideration as intertwined with the same issue for substitution benefits purposes. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010) (an accrued-benefits claimant has two options: request substitution or pursue a claim for accrued benefits); Reliford v. McDonald, 27 Vet. App. 297, 303-04 (2015) (the appellant has the right to choose to waive substitution); Veterans Benefits Administration (VBA) Fast Letter No. 10-30 (amended April 3, 2013). Without determining whether the Appellant is pursuing any pending claim as a substitute for the Veteran or on an accrued benefits basis, the Board is not in a position to adjudicate any matter currently on appeal. The matters are REMANDED for the following action: 1. The AOJ should send a notice letter to the Appellant and her attorney that explains how to establish entitlement to accrued benefits and substitution. She should be asked whether she wishes to pursue a substitution of a specific claim pending before VA at the time of the Veteran’s death as opposed to pursuing any such claim for accrued benefits. The Appellant should be advised of her right to waive her claim for accrued benefits or substitution. Assure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159; by 38 C.F.R. § 3.1010; and by any other applicable legal precedent has been completed. 2. If the Appellant responds that she would like to take the opportunity to substitute, the AOJ must adjudicate the issue of substitution in the first instance. See 38 C.F.R. § 3.1010(e). 3. If the request for substitution is allowed, the AOJ should complete any other development deemed necessary and should adjudicate the claim based on substitution. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.