Citation Nr: 0812280 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-00 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from September 1940 to July 1945, and from October 1946 to July 1952. The veteran died in June 1991. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that the appellant's claim of entitlement to service connection for the cause of the veteran's death was withdrawn prior to certification of the case to the Board. REMAND The record shows that the veteran was at one time receiving a total disability evaluation based on individual unemployability (TDIU). Based on scheduled examinations conducted in April 1984, it was determined that the veteran's mental disability, diagnosed as chronic factitious disorder with physical symptoms, had improved to the point that the VA examiner found no current psychiatric disorder at all. Accordingly, the RO reduced the rating for the mental disorder from 70 percent to 30 percent, effective August 1, 1984. As the RO noted, it was not reduced to zero percent owing to VA policy against precipitous decreases in ratings. Also reduced, with the same effective date, was the veteran's cervical spine disability rating, which was reduced from 30 percent to 10 percent. The spine disability was subsequently restored by the Board to 20 percent because it was protected at that level due to the length of time that the 20 percent rating had been in effect. Because of the decrease in the combined disability rating, the veteran was found to be no longer entitled to a 100 percent TDIU rating, and it was terminated effective July 31, 1984. In a rating decision dated in July 1991, the appellant was denied entitlement to Dependency and Indemnity Compensation (DIC) and accrued benefits. The appellant did not appeal that decision, and the RO has thus considered this to be a final decision. The appellant sought to reopen her claim in September 2004. Though it is not entirely clear to the Board, it appears from the appellant's large volume of correspondence that her claim for accrued benefits is based on her assertion that the veteran was wrongly denied entitlement to TDIU in 1984, and because the veteran never received any retroactive payments for the restored 10 percent for his cervical spine disability. The appellant's contention consequently appears to be that she should be awarded accrued benefits because of a claim of clear and unmistakable error (CUE) in May 1984 and May 1986 rating decisions. In this regard, the Board points out that, in order for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In this case, the claims file reflects that the veteran had filed a claim in May 1991 (prior to his death) for increased ratings for his service-connected disabilities and for service connection for what was described as stomach disorder and dental/gum disease, presumably for compensation purposes. As noted above, he died the following month before the RO adjudicated these claims. An application for accrued benefits was received from the appellant later in June 1991. The claims for higher ratings for accrued benefit purposes was denied by the RO in July 1991. It does not appear that the claims for service connection for a stomach disorder or for dental and gum disease were addressed in the denial of entitlement to accrued benefits, and, to that extent, the appellant's original claim for accrued benefits remains pending. The Board will therefore remand in order to have the AOJ adjudicate the appellant's claim for accrued benefits based on the two pending but unadjudicated service connection claims. (Claims for peptic ulcer disease and esophagitis had previously been denied during the veteran's lifetime; consequently, to the extent that the May 1991 claim for service connection for a stomach disorder contemplated either disability, it must be construed as a claim to reopen. Wright v. Brown, 9 Vet. App. 300, 303 (1996).) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Specific notice relative to accrued benefits, including notice as to what claims had been filed by the veteran prior to his death and the nature of service-connected disabilities should be provided the claimant. The Board will therefore remand this appeal in order to ensure that the appellant receives the due process to which she is entitled in connection with this claim. Accordingly, the appellant's case is REMANDED to the AOJ for the following actions: 1. The AOJ must ensure that all notification and development action required by the VCAA is completed. The VCAA notice must specifically include (1) a statement of the disabilities for which the veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a accrued benefits claim; and (3) an explanation of the claims pending at the time of the veteran's death. 2. After undertaking any other development deemed appropriate, the AOJ should consider the accrued benefits issue on appeal, based on the veteran's May 1991 service connection claims, in light of all information or evidence received. (Consideration should be given to whether the stomach claim represented a claim to reopen service connection for peptic ulcer disease or esophagitis.) The AOJ should also address the question of whether the veteran had filed a claim during his lifetime of clear and unmistakable error in earlier rating decisions that had resulted in a reduction of a total rating. Because the appellant is arguing that accrued benefits are payable as a result of such a claim, this issue should be specifically addressed. See Jones, supra; 38 C.F.R. § 3.1000(d)(5). If the benefit sought is not granted, the appellant and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The supplemental statement of the case should refer to 38 U.S.C.A. § 5121 and 38 C.F.R. § 3.1000. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the AOJ. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the AOJ. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This 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) (2007).