Citation Nr: 9824971 Decision Date: 08/19/98 Archive Date: 07/27/01 DOCKET NO. 98-09 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether the appellant filed a timely application for entitlement to Restored Entitlement Program for Survivors (REPS) benefits. ATTORNEY FOR THE BOARD B. P. Tierney, Associate Counsel INTRODUCTION The veteran served on active duty from May 1971 to September 1979. The veteran died on active duty. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, dated in September 1997. That decision denied the appellant's claim of entitlement to REPS benefits. The basis for the denial was that the veteran had not applied for those benefits prior to reaching the age of 22. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to retroactive REPS benefits for the period for which he was eligible. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has filed a timely application for REPS benefits. FINDINGS OF FACT 1. The veteran died on active duty in September 1979. 2. The appellant is the son of the veteran. 3. The appellant filed a claim of entitlement to REPS benefits in November 1996. CONCLUSION OF LAW There is no time limit for filing a claim of entitlement to REPS benefits. Therefore, the appellant's application for REPS benefits is timely. 38 C.F.R. § 3.812 (f) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service department records show that the veteran, who was the appellant's father, died in September 1979, while on active duty. The appellant filed a claim of entitlement to REPS benefits in November 1996. The RO denied his claim because he had reached the age of 22 in August 1996, and was beyond the age of eligibility for payment of REPS benefits. The provisions of 38 C.F.R. 3.812, provide for payment of a special allowance to certain surviving spouses and children of individuals who died on active duty prior to August 13, 1981, or who died as a result of a service-connected disability which was incurred or aggravated prior to August 13, 1981. This special allowance is a replacement for certain social security benefits which were either reduced or terminated by provisions of the Omnibus Budget Reconciliation Act of 1981. A determination must first be made that the person on whose earnings record the claim is based either died on active duty prior to August 13, 1981, or died as a result of a service- connected disability which was incurred or aggravated prior to August 13, 1981. For purposes of this determination, character of discharge is not a factor for consideration, and death on active duty subsequent to August 12, 1981, is qualifying provided that the death resulted from a service- connected disability which was incurred or aggravated prior to August 13, 1981. 38 C.F.R. § 3.812(a)(1). Once a favorable determination has been made under paragraph (a)(1) of that section, determinations as to the age, relationship and school attendance requirements contained in paragraphs (a)(1) and (b)(1) of section 156 of Pub. L. 97-377 will be made. In making these eligibility determinations VA shall apply the provisions of the Social Security Act, and any regulations promulgated pursuant thereto, as in effect during the claimant's period of eligibility. Unless otherwise provided in this section, when issues are raised concerning eligibility or entitlement to this special allowance which cannot be appropriately resolved under the provisions of the Social Security Act, or the regulations promulgated pursuant thereto, the provisions of title 38, Code of Federal Regulations, are for application. 38 C.F.R. § 3.812(a)(2). Under 38 C.F.R. § 3.812(f) (1997), "[t]here is no time limit for filing a claim for this special allowance. Upon the filing of a claim, benefits shall be payable for all periods of eligibility beginning on or after the first day of the month in which the claimant first became eligible for this special allowance, except that no payment may be made for any period prior to January 1, 1983." This regulation has been rewritten subsequent to VA O.G.C. Prec. Op. No. 22-94 (Dec. 14, 1994) and the United States Court of Veterans Appeals and the United States Court of Appeals for the Federal Circuit, decisions in Skinner v. Brown, 4 Vet.App. 141 (1993), aff'd, 27 F.3d 157l (Fed. Cir. 1994), and Cole v. Derwinski, 2 Vet.App. 400 (1992), aff'd, 35 F.3d 551 (Fed. Cir. 1994), holding that VA regulations establishing time-specific filing requirements for claims under REPS to be invalid. For new claims filed after issuance of those decisions and for claims pending at the time those decisions were issued, REPS benefits may be awarded without regard to when the claims were filed. Benefits may be paid beginning with the first month in which the claimant became eligible for REPS benefits. The language of 38 C.F.R. § 3.812(f) is now clear. There is no requirement that the appellant file a claim during his or her period of eligibility. There is no bar to retroactive payment of benefits. It is also clear, and the RO has appears to have essentially determined, that the appellant meets the eligibility requirements of 38 C.F.R. § 3.812(a)(1). ORDER The appellant filed a timely application for REPS benefits. REMAND In view of the Board's finding that the appellant's application for REPS benefits was timely filed and that he is eligible for those benefits under 38 C.F.R. § 3.812(a)(1), it is necessary to determine his eligibility for benefits under § 3.812(a)(2). The Board cannot decide this question in the first instance. Accordingly this case must be REMANDED for the following: The RO should assemble all necessary information in order to determine whether the appellant is eligible for retroactive payment of REPS benefits in accordance with 38 C.F.R. § 3.812(a)(2). The RO should then re-adjudicate the appellant's claim. If after completion of the requested development the benefit sought has not been granted, the veteran should be furnished with a supplemental statement of the case, and be given a reasonable opportunity to respond. Thereafter, following compliance with all other procedures relative to the processing of appeals, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he receives further notice. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997).