Veteranclaims’s Blog

February 10, 2020

Single Judge Application; accrued-benefits and substitution; 38 U.S.C. § 5121A; 38 U.S.C. § 5121(a); entitlement to accrued benefits can be established under one of two “separate and distinct procedural paths”: (1) 38 U.S.C. § 5121(a), governing accrued benefits, or (2) 38 U.S.C. § 5121A for substitutions;

Filed under: Uncategorized — Tags: — veteranclaims @ 1:09 pm

Excerpt from decision below:

” A. Accrued Benefits and Substitution
Under 38 U.S.C. § 5121A, certain survivors of deceased claimants may apply to be substituted as the claimant for purposes of processing to completion a claim pending at the time of the claimant’s death.13 The purpose of section 5121A is to permit eligible accrued-benefits claimants to step into the shoes of the veteran and assume the decedent’s place in the adjudicatory
queue.14 Essentially, entitlement to accrued benefits can be established under one of two “separate and distinct procedural paths”: (1) 38 U.S.C. § 5121(a), governing accrued benefits, or (2) 38 U.S.C. § 5121A for substitutions.15 “[T]he 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.”16″

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7070
SHARON SCHONERT, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Sharon Schonert is the surviving spouse of veteran Floyd M. Schonert, who served the Nation honorably in the United States Navy from October 1965 to October 1968.1 In this appeal, which is timely and over which the Court has jurisdiction,2 she appeals a September 11, 2018, Board decision that denied entitlement to service connection for a
pulmonary disorder, including chronic obstructive pulmonary disease (COPD), for accrued benefits purposes and entitlement to service connection for the veteran’s cause of death. Because the Board erred in not properly considering appellant’s accrued-benefits claim under the substitution statute as well, we will set aside its decision and remand these matters for further proceedings.
I. ANALYSIS
By way of background, the veteran filed a claim for service connection for COPD in August
2011.3 He died in September 2012 while his claim was pending, and the cause of death was noted
1 Record (R.) at 2801.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 2625.
2
as “end stage COPD.”4 That same month, appellant submitted a statement to VA seeking benefits.5
In a January 2013 letter, VA noted it was working on claims for accrued benefits and dependency
and indemnity compensation (DIC), based on COPD and other disabilities.6 VA also noted the
veteran’s pending COPD claim and stated: “You are now considered a substitute claimant in place
of the veteran. We are continuing his claim to determine if you are entitled to accrued benefits.”7
In a March 2013 decision, the VA regional office (RO) denied service connection for COPD “for
accrued purposes” and for cause of the veteran’s death.8 The RO noted that the COPD decision
was “based on evidence in the claims folder at the time of death.”9 Appellant perfected an appeal
to the Board.
In the September 2018 decision before us, the Board denied service connection for COPD,
finding an “absence of any probative evidence relating the Veteran’s pulmonary disorder(s) to his
military service.”10 The Board considered the veteran’s statements that he had been exposed to
asbestos while serving aboard the U.S.S. Columbus, but the Board found them not probative
because his service records did not document asbestos exposure and his military occupational
specialty of cook had “minimal probability of exposure to asbestos.”11 In reaching its conclusion,
the Board cited the statute and regulation governing accrued benefits, 38 U.S.C. § 5121(a), and noted that its decision was “based on evidence in the file at the date of [the veteran’s] death.”12
This appeal followed.
On appeal, appellant argues in part that the Board erred in failing to consider that she had
been substituted for the veteran in his COPD claim pending at the time of his death. She contends
that because she is a substituted claimant, the Board should have considered evidence of record
after the veteran’s death. She also asserts that her cause of death claim is inextricably intertwined
with the COPD claim for accrued benefits. The Secretary defends the Board decision in full. He
4 R. at 2102.
5 R. at 2105.
6 R. at 2061.
7 Id.
8 R. at 2003-14.
9 R. at 2011.
10 R. at 8.
11 R. at 5-7.
12 R. at 6.
3
argues that the Board did not have jurisdiction to decide appellant’s substitution claim, which
remains pending at the RO. Thus, he urges affirmance.

A. Accrued Benefits and Substitution
Under 38 U.S.C. § 5121A, certain survivors of deceased claimants may apply to be substituted as the claimant for purposes of processing to completion a claim pending at the time of the claimant’s death.13 The purpose of section 5121A is to permit eligible accrued-benefits claimants to step into the shoes of the veteran and assume the decedent’s place in the adjudicatory queue.14 Essentially, entitlement to accrued benefits can be established under one of two “separate and distinct procedural paths”: (1) 38 U.S.C. § 5121(a), governing accrued benefits, or (2) 38 U.S.C. § 5121A for substitutions.15 “[T]he 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.”16

An appellant’s eligibility for accrued benefits is a question of fact that we review for clear
error.17 For all findings on a material issue of fact and law, the Board must support its decision
with an adequate statement of reasons or bases that enables a claimant to understand the precise
bases for the Board’s decision and facilitates review in this Court.18
Here, VA explicitly notified appellant that she was a substitute for the veteran’s pending
claim for service connection for COPD; however, the Board failed to discuss section 5121A and
did not consider any evidence of record after the veteran’s death in September 2012. Although the
Secretary argues that the substitution claim was not before the Board, Reliford made it clear that
section 5121(a) and section 5121A provided two options to seek accrued benefits and that a
qualified claimant could choose between the two.19 There is no indication that appellant was
provided that choice.
13 See Reliford v. McDonald, 27 Vet.App. 297, 302 (2015); Breedlove v. Shinseki, 24 Vet.App. 7, 20 (2010); VA Fast
Letter 10-30 (Apr. 3, 2013).
14 Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of VA, 809 F.3d 1359, 1361 (Fed. Cir. 2016).
15 Reliford, 27 Vet.App. at 302 (emphasis in original).
16 Id. (quoting 38 U.S.C. § 5121(a)).
17 Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).
18 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
19 Reliford, 27 Vet.App. at 303.
4
Furthermore, in Reliford the facts were nearly the inverse of the facts presented here. In
that case, the appellant sought accrued benefits under section 5121(a) but the Board adjudicated
her claim under section 5121A. The Court set aside the Board decision and remanded the matter
because she had not been given the opportunity to waive substitution and the Board failed “to
adjudicate her accrued-benefits claim against the proper factual background,” namely ending
development at the date of the veteran’s death.20 As Judge Lance noted in his concurrence, if a
section 5121(a) claim was separate and remained unadjudicated, “the Court would lack jurisdiction
to remand such a claim to the Board; the appropriate remedy would be vacatur and dismissal.”21
The logic of Reliford applies here. Appellant was not given the opportunity to choose the
statute under which her claim for accrued benefits should be adjudicated, and the Board failed to
adjudicate her claim against the proper factual background, including evidence developed after the
veteran’s death. Essentially, the Board elected the less beneficial path without appellant having a
say. It is also not clear that appellant was given the full opportunity to develop the COPD claim
nor the benefit of the duty to assist. Thus, remand is warranted.22
As a final matter, the claim for service connection for COPD was filed by the veteran in
August 2011. This Court has noted that the purpose of substitution is to provide eligible claimants
“a faster, fairer, and more efficient way to process their accrued-benefits claims.”23 By continuing
a pending claim, rather than having to file a new claim, appellant can take the veteran’s spot in
line, rather than starting over. The Secretary’s assertion that appellant’s substitution claim remains
pending at the RO after 8 years runs counter to the congressional intent behind section 5121A,
which was to “address the concern of delay, unfairness, and inefficiency.”24 It is also illogical that
appellant’s accrued-benefits claim, which was filed a year later, was adjudicated first and without
the substitution component. Thus, we must reject the Secretary’s position.
B. Cause of Death
We will set aside the Board’s decision concerning service connection for the cause of the
veteran’s death because it is inextricably intertwined with the Board’s consideration of appellant’s
20 Id. at 304.
21 Id. at 306.
22 Tucker v. West, 11 Vet.App. 369, 374 (1998).
23 Reliford, 27 Vet.App. at 303.
24 Breedlove, 24 Vet.App. at 20.
5
accrued-benefits claim that the Court is remanding. As we have explained, “where a decision on
one issue would have a ‘significant impact’ upon another and that impact in turn ‘could render any
review by this Court of the issue [on the other claim] meaningless and a waste of judicial resources’
the two claims are inextricably intertwined.”25 Given the potential development of the COPD
claim, that is the case here.
C. Appellant’s Rights on Appeal
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.26 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.27 The Board must consider such additional evidence or
argument submitted.28 The Board must also proceed expeditiously.29
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the September 11, 2018, Board decision and REMANDS these matters for further
proceedings.
DATED: February 7, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
25 Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)).
26 Best v. Principi, 15 Vet.App. 18, 20 (2001).
27 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92, 97 (2018).
28 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
29 38 U.S.C. §§ 5109B, 7112.

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