Citation Nr: 0813980 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-00 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to accrued benefits. WITNESSES AT HEARING ON APPEAL Appellant and R.S. ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from January 1945 to May 1946 and from September 1950 to March 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the VA Regional Office (RO) in Los Angeles, California which denied entitlement to service connection for cause of death, and entitlement to Dependency and Indemnity Compensation (DIC). Subsequent to a timely Notice of Disagreement, the RO issued a Statement of the Case (SOC) which affirmed the denial of service connection for cause of death, entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318, and service connection for accrued benefits. Appellate review of this matter was first conducted by the Board in October 2004. At that time the Board remanded the matter for additional development. A Supplemental Statement of the Case was issued in September 2005 which affirmed the denial of benefits. In November 2006 the Board reviewed this matter again and affirmed the denial of service connection for cause of death, as well as the denial of entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318. However, as to the entitlement to accrued benefits, the Board remanded for additional development. Specifically, the Board requested additional notice be issued to the appellant, and that the RO obtain the veteran's Social Security Administration (SSA) records. A review of the file indicates that the RO issued requests to SSA for records in January, May, and December 2007. On all three occasions the SSA responded that they were unable to locate records pertaining to the veteran. As set forth in more detail below, a remand of this matter is required. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant if further action is required. REMAND As noted above, the veteran died in December 2001. The governing law applicable in cases where the veteran died prior to December 16, 2003 provides that, upon the death of a veteran, periodic monetary benefits to which he was entitled to, on the basis of evidence in the file at the date of death (accrued benefits), and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to a living person, including the veteran's spouse. 38 U.S.C.A. § 5121(a) (West 2002). The phrase "not to exceed two years" has been interpreted by the Federal Circuit as not limiting survivors of veterans to recovery only of those benefits that accrued in the two years immediately preceding a veteran's death. Rather, § 5121(a) (as in effect prior to December 16, 2003) limits the total accrued benefit payments that a survivor may receive to those accrued benefits due and unpaid for up to a two-year period. Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that 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." The Federal Circuit noted that this conclusion comported with the decision in Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996), which stated that a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application. Id. at 1300. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2006). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2007); see also, 38 C.F.R. §§ 20.1103, 20.1104 (2007). In the case at hand, the veteran initiated a claim for an increased rating in May 2001. The RO issued a rating decision in November 2001 denying the claim; the veteran died a month later in December 2001. The veteran's spouse filed a claim for accrued benefits in January 2002. The question then becomes whether at the time of the veteran's death, the veteran's claim was "pending" or had been "finally adjudicated." The United States Court of Appeals for Veterans' Claims (Court) has rendered a decision on this point. In the case of Taylor v. Nicholson, 21 Vet. App. 126 (2007), the Court noted that the veteran had died before filing a Notice of Disagreement, and held that the claim did not become "fully adjudicated" until one year after the RO's decision. Because the veteran's spouse in Taylor had filed a claim for accrued benefits within that time period, the Court held that she had applied for benefits while the veteran's claim was still "pending" and not "fully adjudicated." Based upon a review of the above, the Board concludes that the evidence in this matter supports a finding that the veteran had claims pending at the time of his death. Specifically, the veteran's claims for evaluation of chronic lumbosacral strain with degenerative disease, currently evaluated as 40 percent disabling, entitlement to individual unemployability, and entitlement to special monthly compensation based upon the need for regular aid and attendance or being housebound, were still "pending" and not "fully adjudicated" at the time of the veteran's death. Accordingly, this matter is REMANDED for the following actions. 1. The AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should undertake consideration of the claim for accrued benefits as required by case law. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals