Citation Nr: A25035406 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240702-452754 DATE: April 17, 2025 REMANDED 1. Entitlement to accrued benefits is remanded. 2. Entitlement to Dependency and Indemnity Compensation (DIC) is remanded. 3. Entitlement to nonservice-connected survivor's (death) pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to August 1974. Unfortunately, the Veteran died in February 2015; the Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 9, 2024 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO). In response to the February 2024 administrative decision, in July 2024, the Appellant submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) where she selected the Direct Review docket. Under that docket, the Board considers the claim based on the evidence of record at the time of the issuance of the rating decision on appeal. 38 C.F.R. § 20.301. Thus, the Board's review is limited to the evidence of record at the time of the issuance of the February 2024 administrative decision. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the agency of original jurisdiction (AOJ) in the adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to accrued benefits is remanded. The issue of entitlement to accrued benefits is remanded to satisfy a statutory and regulatory duty, as it would have a reasonable possibility of aiding in substantiating the Appellant's claim. Namely, while the appellant timely filed a VA Form 21-534 Application for DIC, Pension and Accrued benefits the record does not show that the AOJ made a substitution determination prior to the issuance of the decision on appeal as required by regulation. When there is a request for substitution, regulations direct that "the agency of original jurisdiction will decide in the first instance all requests to substitute." See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Accrued benefits are benefits to which a payee was entitled at his or her death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the claim for accrued benefits must be filed within one year of the Veteran's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. The Appellant's current claim for accrued benefits was received in July 2023, more than a year after the Veteran's death in February 2015. However, the law does permit a claimant to reopen a previously denied claim for accrued benefits so long as the Appellant submitted the initial claim within the one-year time limit. Quattlebaum v. Shinseki, 25 Vet. App. 171 (2012). In this case, the Appellant submitted her original claim for accrued benefits in March 2015. Thus, the Appellant's July 2023 claim was a request to reopen the previously denied claim for accrued benefits and is permissible. The statutory provisions of section 38 U.S.C. § 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"). In essence, the key distinction between the sections is that claims for accrued benefits 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 duty to assist. Compare 38 U.S.C. § 5121(a), with 38 U.S.C. § 5121A. The law pertaining to substitution, 38 U.S.C. § 5121A, contains no requirement that an appeal be filed by a veteran prior to his or her death. Rather, 38 U.S.C. § 5121A requires only that "a claim for any benefit . . . is pending" at the time the motion for substitution is filed. A pending claim is defined by regulation as a claim for which the appeals period has not yet expired. 38 C.F.R. §§ 3.156(a), 3.160(c). Additionally, the U.S. Court of Appeals for Veterans Claims has held that a claim remains pending despite the death of the veteran if the appeals period has not yet lapsed. Taylor v. Nicholson, 21 Vet. App. 126, 128-29 (2007). Moreover, under 38 C.F.R. § 3.1010(g)(1)(i), "[a] claim is also considered to be pending if, at the time of the claimant's death, the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired." Prior to his death, the Veteran filed a July 2014 informal intent to file a claim for compensation. Within one year of filing his informal intent to file a claim for compensation, he filed a September 2014 fully developed claim for an increased rating for his service-connected duodenal ulcer and requested service connection for tinnitus. Also, within one year of filing his informal intent to file a claim for compensation, he filed a January 2015 informal claim for service connection for erectile dysfunction and amyloidosis. The Veteran died in February 2015 prior to any development on his claims. Thus, the claims remained pending upon his death. The Board finds that the Appellant timely filed a request for substitution. As mentioned, in March 2015, within a year of the Veteran's death, she filed a VA Form 21-534EZ, Application for DIC, Death Pension and/or Accrued Benefits. Thereafter, in July 2023, she filed VA Form 21-534EZ, Application for DIC, Death Pension and/or Accrued Benefits, which, as mentioned above, was a permissible claim to reopen the previously denied claim. Under 38 C.F.R. § 3.1010, a claim for accrued benefits will be a motion to substitute and an accrued benefits claim. There is also no indication in the record that the Appellant waived substitution. The record is silent for any indication that the AOJ decided the request to substitute or provided written notification of the decision to the person who filed the request. See 38 C.F.R. § 3.1010(e). That adjudication is required to fully address the surviving spouse's claims for accrued benefits and is additionally considered to be intertwined with the same issues 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). As the record contains an unadjudicated request for substitution, the Board is not able to decide the issue currently on appeal as the record may be further developed. Therefore, a decision on the issues on appeal must be deferred pending the fulfillment of the statutory and regulatory duty to issue a decision upon the pending substitution request. The Board notes that, as the substitution allows for the submission of additional evidence by the claimant, there is a reasonable possibility that such an action would assist in substantiating the Appellant's claim to any accrued benefits. Remand is therefore required to allow the AOJ to adjudicate the outstanding pending request for substitution by the Appellant. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. ? 2. Entitlement to DIC is remanded. DIC benefits may be granted under 38 U.S.C. § 1310 when a veteran dies from a service-connected or compensable disability. The Veteran's death certificate lists his cause of death as cardiopulmonary failure due to multi-organ amyloidosis. At the time of his death, the Veteran was not service connected for any cardiopulmonary conditions or amyloidosis, so the Appellant was not entitled to DIC. However, entitlement to DIC is dependent on the accrued benefits claim for the Veteran's pending claim of entitlement to service connection for amyloidosis. Thus, the Board finds that the issue of entitlement to DIC is inextricably intertwined with the claim for accrued benefits remanded herein; therefore, it must also be remanded to ensure the appellant is afforded adequate due process. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to nonservice-connected survivor's (death) pension benefits is remanded. The Appellant is seeking entitlement to survivor's benefits, generally, which include nonservice-connected pension benefits. The issue of entitlement to nonservice-connected pension benefits is remanded to correct a duty to assist error that occurred prior to the February 2024 decision on appeal. Specifically, the source of the Appellant's countable income was not verified prior to the decision on appeal. Here, the AOJ determined that the Appellant's income, consisting only of disability benefits administered by the Social Security Administration (SSA), exceeded the applicable limit for entitlement to survivor's pension benefits as a surviving spouse. Notably, however, the results of a February 2024 inquiry as to the amount of the Appellant's SSA benefits revealed no SSA benefits paid and that the claim was disallowed. Based on the foregoing, the AOJ had a duty to obtain clarification as to the source of the Appellant's income that she has received during the pertinent period. Therefore, remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the February 2024 decision on appeal. See 38 C.F.R. § 20.802. The matters are REMANDED for the following actions: 1. Make a determination regarding the Appellant's pending request for substitution. 2. Obtain clarification as to the Appellant's income. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Medina, Sara 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.