Veteranclaims’s Blog

September 9, 2020

Single Judge; 38 C.F.R. § 3.1010(f)(2) (2020) a substitute may raise new theories of entitlement in support of the claim; 38 C.F.R. § 3.1010(f)(3) a “substitute 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;

Designated for electronic publication only
No. 19-4523
Before PIETSCH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The pro se appellant, Anita I. Cavner, appeals a March 20, 2019, Board
of Veterans’ Appeals (Board) decision in which the Board denied her entitlement to a disability
rating greater than 30% for a disorder suffered by her husband, Jack E. Cavner, Jr., that the Agency
labeled “status post right radical nephrectomy for renal cell carcinoma with left nephropathy and
hypertension.” R. at 5-10. This appeal is timely and the Court has jurisdiction over the matter on
appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when
the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the
Board’s decision and remand the matter on appeal for further proceedings consistent with this
Mr. Cavner served on active duty in the U.S. Air Force from November 1968 until
November 1972. R. at 1134. In September 2014, the Board granted him entitlement to disability
benefits for “status post right radical nephrectomy for renal cell carcinoma.” R. at 1196-1200.
Mr. Cavner died on November 1, 2014. R. at 378. His physicians concluded that
ventricular fibrillation and a sudden cardiac event caused his death. R. at 377. In April 2015, VA
determined that the appellant was eligible to be named substitute appellant. In July 2016, the VA
regional office (RO) implemented the Board’s September 2014 decision and assigned Mr. Cavner’s
disorder a 30% disability rating effective February 25, 2010. R. at 102-04. In March 2017, the
appellant filed Notice of Disagreement with the disability rating assigned by the RO. R. at 79-80.
On March 20, 2019, the Board issued the decision presently under review. R. at 3-10.
The Board denied the appellant’s claim “as a matter of law” by applying a regulatory
provision that precludes a substitute claimant from expanding the claim that he or she is entitled
to pursue. The Board concluded that Mr. Cavner’s “claim was for service connection.
Disagreement with the disability rating that was assigned once service connection was established
following [his] death is . . . an addition of an issue or an expansion of the claim.” R. at 7.
The provision that the Board relied on states that a “substitute may not add an issue to or
expand the claim. However, a substitute may raise new theories of entitlement in support of the claim.” See 38 C.F.R. § 3.1010(f)(2) (2020). The Secretary concedes that the Board erred by failing to consider a related provision stating that a “substitute 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.” See 38 C.F.R. § 3.1010(f)(3) (emphasis added). The
Secretary asserts that remand is required for the Board to provide an adequate statement of reasons
or bases explaining its position. The Court accepts the Secretary’s concession.
On remand, the Board should take the following into account. As the Secretary
acknowledges, each claim consists of five elements, one of which is the appropriate disability
rating assigned to the claimed disorder, and, unless there is evidence suggesting otherwise, VA
must assume that the claimant is seeking the maximum available benefit for each claim filed. See
Cacciola v. Gibson, 27 Vet.App. 45, 53 (2014); see also Morgan v. Wilkie, 31 Vet.App. 162, 167
(2019). The Court has long recognized that different elements of a claim may be adjudicated at
different times and come before the Board and Court in separate appeals. Cacciola, 27 Vet.App.
at 53.
In a case involving an open request for an earlier effective date for pension benefits
(which, like disability ratings, is a “downstream” issue), the Court determined that the appellant’s
“claim has still not been resolved because a final determination has not yet been made that he has
been awarded the maximum . . . benefit available to him.” Vargas-Gonzalez v. Principi,
15 Vet.App. 222, 226 (2001). In Cacciola, the Court concluded that “established caselaw . . .
recognizes that downstream elements of a claim can be appealable issues in their own right” and
that an initial decision addressing a claim for entitlement to disability benefits “‘might not resolve,
or even address, all necessary elements of the application for benefits.'” 27 Vet.App. at 53 (quoting
Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997)).
Mr. Cavner’s claim for entitlement to disability benefits for the effects of his renal cancer
included a request for the maximum disability rating available to him.1 As the Secretary notes,
§ 3.1010(f)(3) preserves a substitute claimant’s right to appeal an adverse Agency decision
involving an eligible claim. The Board should thoroughly discuss whether the appellant has done
anything more than press VA to finally decide Mr. Cavner’s claim.
The Board misunderstood the law in the decision presently on appeal. It found that
application of § 3.1010(f)(2) was appropriate because Mr. Cavner’s “claim was for service
connection.” R. at 7. That is not correct. Service connection, like degree of disability, is one of
the “five necessary elements” of a “claim for VA disability compensation.” Cacciola, 27 Vet.App.
at 53. The Board, in effect, converted elements of a claim into individual and separate claims.
Factual errors compounded the Board’s legal misstatements. The Board seemed not to
recollect that it granted Mr. Cavner entitlement to disability benefits for his claimed disorder
during his lifetime. Instead, it found that Mr. Cavner filed his claim in March 2014 and that he
“passed away in November 2014 before this claim could be adjudicated.” R. at 6. That finding is
clearly erroneous. Still not aware of its September 2014 decision, the Board then found that
§ 3.1010(f)(2) applies because Mr. Cavner “passed away before the issuance of the rating decision,
and the appellant had already been substituted at the time of that rating decision.” R. at 7. The
Board’s statements reveal that it found application of § 3.1010(f)(2) to be appropriate at least in
part by misreading the facts of this case.
1 The Secretary concedes that there is no evidence that Mr. Cavner sought less than the maximum benefits
available to him.
Before Mr. Cavner died, the Board awarded him entitlement to disability benefits but did
not assign a disability rating. The RO assigned the 30% disability rating after his death. For the
legal conclusion reached by the Board in the decision presently on appeal to be correct, the fact
that Mr. Cavner died after the Board awarded him disability benefits but before the RO assigned a
disability rating must have been sufficient to reconfigure his claim, constrain the appellant from
seeking the maximum rating possible through an appeal, and freeze the disability rating at
whatever level the RO chose to set. There is no legal support for that proposition in the Board’s
decision or Secretary’s brief and no allowance for its unjust effects. On remand, if the Board’s
present view of the case persists, it should provide a thorough description of the legal provisions
that support that view.
There is one other matter that the Board should be aware of when it reviews this case on
remand. In May 2017, the appellant asserted that Mr. Cavner received substandard treatment at a
VA Medical Center immediately prior to his death and suggested that, had medical providers acted
appropriately, they might have prevented the cardiac episode that led to his death. R. at 23; see
38 U.S.C. § 1151. In a document filed with her brief, she stated that she has raised this issue to
VA but received no response. The Board may wish to review that matter on remand and determine
whether additional action is required. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d
sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
The appellant also is entitled to demand that the Board respond to that argument and any
others that she wishes to raise on remand. Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order); see Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board is required by
law “to provide . . . expeditious treatment” to the matter remanded by the Court. 38 U.S.C. § 7112.
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s March 20, 2019, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: September 8, 2020
Copies to:
Anita I. Cavner
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by