Veteranclaims’s Blog

February 19, 2020

Single Judge Application; 38 U.S.C. § 5121A; survivors of deceased claimants; 38 U.S.C. § 5121(a); accrued-benefits claimants; VA Fast Letter 10-30;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0179
MARCIA L. WILSON, 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 Marcia L. Wilson is the surviving spouse of veteran William C. Wilson, who served the Nation honorably in the United States Marine Corps. In this appeal, which is timely and over which the Court has jurisdiction,1 she appeals a September 11, 2018, Board
decision that denied an effective date earlier than July 17, 2002, and a disability rating greater than 30% for service-connected coronary artery disease.2 She also challenges the Board’s failure to discuss claims pending at the time of the veteran’s death, for which she argues she should have
been substituted. Because the Board failed to provide an adequate statement of reasons or bases for denying an earlier effective date and increased rating for coronary artery disease and failed to
address the veteran’s pending claims, we will set aside its decision and remand these matters for further proceedings.
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 The Board also denied effective dates earlier than January 1, 2009, for the grant of entitlement to dependency and
indemnity compensation (DIC) and the award of chapter 35 eligibility for dependents’ educational assistance. Because
appellant does not challenge these issues, we deem any appeal as to these matters abandoned. See Pederson v.
McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc).
2
I. FACTS AND PROCEDURAL HISTORY
The veteran filed claims for service connection for diabetes mellitus, peripheral
neuropathy, a back condition, peripheral vascular disease, and hypertension in July 2006.3 In a
July 2007 rating decision, the regional office denied service connection for hypertension, diffuse
idiopathic skeletal hyperostosis (DISH), peripheral arterial vascular disease, and peripheral
neuropathy.4 In April 2008, the veteran filed a Notice of Disagreement (NOD) with the denial of
service connection for these four conditions.5
On January 31, 2009, the veteran died from atherosclerosis cardiovascular disease.6 In
March 2009, appellant sought DIC and burial benefits, which the RO granted in July 2009.7 In a
June 2009 rating decision, the RO notified appellant that the veteran had claims pending and that
it was adjudicating those claims “for accrued benefits purposes”; the RO continued the denial of
those claims.8 Appellant perfected an appeal as to the effective date and rating assigned for
coronary artery disease. In her November 2014 Substantive Appeal, she inquired about the claims
pending when the veteran died and whether VA had compensated him properly.9
In the September 2018 decision on appeal, to assign an effective date the Board relied on
a June 2002 private treatment record that showed the veteran’s first diagnosis of heart disease. The
Board also applied the rating criteria under 38 C.F.R. § 4.104, Diagnostic Code 7005, to deny a
disability rating greater than 30%.
Appellant argues that the Board failed to consider evidence dated prior to the veteran’s
initial diagnosis to determine when it was first factually ascertainable that he had a heart condition.
Appellant also contends that the Board failed to consider evidence that reasonably raised the issue
of a total disability rating based on individual unemployability (TDIU) and special monthly
compensation (SMC) based on the need for aid and attendance. Appellant further asserts that the
Board should have considered the four pending claims the veteran appealed in his April 2008 NOD
3 R. at 971.
4 R. at 601-08.
5 R. at 270.
6 R. at 349.
7 R. at 374-83.
8 R. at 314.
9 R. at 142-43.
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and remanded those matters to the RO for the issuance of a Statement of the Case (SOC). The
Secretary concedes remand is warranted as to the assigned effective date and disability rating for
coronary artery disease, but the Secretary defends the Board’s failure to address the April 2008
NOD, arguing that the Board did not have jurisdiction over the NOD’s claims, which were
unrelated to the issues before it.

II. ANALYSIS
A. Coronary Artery Disease
The parties agree that the issues of an earlier effective date and disability rating for
coronary artery disease should be remanded, and the Court confirms that remand of those matters
is appropriate.
The effective date for a service-connected disability is generally the date of receipt of the
claim or the date entitlement arose, whichever is later.10 The question raised here relates to the
latter: when entitlement arose. As the Secretary concedes, the Board relied exclusively on the date
that a heart condition was diagnosed, which is not the standard the statute and regulation articulate.
The Board failed to apply the full statutory and regulatory provisions because it did not discuss
whether the veteran’s condition may have arisen before his formal diagnosis. Thus, remand is
required for the Board to consider evidence prior to diagnosis and determine when entitlement to
service connection for coronary artery disease arose.
Appellant argues, and the Secretary concedes, that remand of the 30% disability rating
assigned for coronary artery disease is required because the Board failed to consider evidence of
unemployability and the need for aid and attendance, which raised the issues of entitlement to
TDIU and SMC. Specifically, the Board failed to consider evidence that the veteran lived in a
nursing home in September 2006, which raised the issue of the need for aid and attendance as well
as his inability to work. Thus, the Court agrees that remand is required for the Board to consider
this evidence.
B. Veteran’s April 2008 NOD
Appellant argues that the Board should have remanded claims for service connection for
hypertension, DISH, peripheral arterial vascular disease, and peripheral neuropathy because the
10 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2) (2019).
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veteran filed an NOD before he died, which put those claims in appellate status before the Board.
She also argues that she is qualified to substitute for the veteran as claimant and to continue the
appeal of these matters.
“[A]n NOD initiates appellate review in the VA administrative adjudication process.”11 If
a claimant files an NOD and no SOC is furnished in response, then the claim remains pending in
an appellate status.12 In such cases, the Board should remand the issue to the RO for issuance of
an SOC.13 Here, the parties do not dispute the veteran filed a valid NOD in April 2008, appealing
the July 2007 rating decision. Thus, his claims for service connection for hypertension, DISH,
peripheral arterial vascular disease, and peripheral neuropathy were placed in appellate status and
ripe for Board consideration, following the issuance of an SOC. 14 The question is whether
appellant should have been substituted for the veteran.
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.15 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.16 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.17 An appellant’s eligibility for accrued benefits is a question
of fact that we review for clear error.18 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
11 Mason v. Brown, 8 Vet.App. 44, 54 (1995) (citing 38 U.S.C. § 7105); Holland v. Gober, 10 Vet.App. 433, 436
(1997) (per curiam order).
12 See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995).
13 Manlincon v. West, 12 Vet.App. 238, 240-41 (1999).
14 Id.
15 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).
16 Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of VA, 809 F.3d 1359, 1361 (Fed. Cir. 2016).
17 Reliford, 27 Vet.App. at 302 (emphasis in original).
18 Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).
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claimant to understand the precise bases for the Board’s decision and facilitates review in this
Court.19
Here, appellant filed a claim for DIC and burial benefits in March 2009, following the
veteran’s death and while his claims were pending. The RO recognized the pending claims and
adjudicated them for accrued-benefits purposes in a June 2009 rating decision. However, it is not
clear whether appellant was considered as a substitute at that time.
The Secretary argues that VA was not required to consider appellant’s DIC claim as a request to substitute, because appellant’s DIC claim was filed before VA Fast Letter 10-30.
However, VA Fast Letter 10-30 was in effect at the time of appellant’s November 2014 Substantive Appeal, in which she raised questions about retroactive benefits owed to the veteran.20 Thus, the
issue of substitution was reasonably raised.
Given the NOD filed by the appellant in April 2008, the appellant’s November 2014
Substantive Appeal, and the fact that VA never informed appellant of her substitution rights
throughout the pendency of her appeal, remand is required for the Board to address these matters
and determine whether they should be remanded for issuance of an SOC and whether appellant is
an appropriate substitute.21
C. Appellant’s Rights on Appeal
On remand, appellant may submit additional evidence and argument and has 90 days to do
so from the date of VA’s postremand notice.22 The Board must consider such additional evidence
or argument submitted.23 The Board must also proceed expeditiously.24
19 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
20 R. at 142-43.
21 See Manlincon, 12 Vet.App. at 240; Holland, 10 Vet.App. at 436 (vacating Board decision and remanding matter
when VA failed to issue SOC after claimant submitted timely NOD); see also Fenderson v. West, 12 Vet.App. 119
(1999) (following Holland).
22 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).
23 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
24 38 U.S.C. §§ 5109B, 7112.
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III. 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 18, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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