Citation Nr: 0814662 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-15 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to restoration of nonservice-connected death pension benefits during the appellant's incarceration from August 23, 1981 to October 3, 1991. 2. Entitlement to an increase in the rate of nonservice- connected death pension during the appellant's incarceration. REPRESENTATION Appellant represented by: C. Bryan Wilson, Esquire WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran's verified periods of active military service are from January 1951 to January 1957 and from April 1958 to December 1964. He died in July 1980. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the following two decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut: an April 2002 decision in which an effective date of October 16, 1980, was assigned for the grant of nonservice-connected death pension benefits; and a September 2003 rating decision in which an effective date of July 1, 1980, was assigned to the appellant's grant of nonservice-connected death pension benefits. The appeal has previously been before the Board. An August 1993 RO decision awarded nonservice-connected death pension benefits to the appellant, effective on April 1, 1992. The appellant appealed the assigned effective date. The Board issued a decision in April 1997 that upheld the RO's August 1993 decision. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court of Appeals). In December 1998, the Court of Appeals granted a joint motion of the parties and vacated the Board's April 1997 decision and remanded the case to the Board. In July 1999, the Board remanded the matter to the RO for additional development. In April 2002, VA assigned the award for nonservice-connected death benefits from October 16, 1980, and as part of that decision, determined that the appellant's death pension benefits should be reduced during the first 60 days of her incarceration based on her receipt of incentive pay from the prison. As relevant here, the appellant appealed the RO's determination to reduce her death pension benefits during the first 60 days of her period of incarceration. In September 2003, the RO issued a rating decision that changed the effective date of the appellant's death pension benefits to July 1, 1980, and as part of that decision, determined that the appellant's death pension benefits must be discontinued for the period dated from the 61st day of her incarceration until her release. The appellant appealed that portion of the decision that discontinued her benefits for the period dated from the 61st day of her incarceration until her release. In a December 2005 decision, the Board both denied the appellant's claim to increase the rate of payments that had been reduced on the basis of her receipt of incentive pay from the prison and denied her claim to restore the benefits that had been discontinued for the period dated from the 61st day of incarceration until date of release. The appellant appealed. In May 2007, the Court of Appeals again remanded the appeal to the Board. This appeal is now being remanded for the RO/AMC to issue a supplemental statement of the case, pursuant to the order of the Court of Appeals. The appellant was afforded a personal hearing before an RO Decision Review Officer in May 2004. She also appeared for a personal hearing at the RO in June 2005 before the undersigned Veterans Law Judge. Transcripts of the hearings are associated with the claims folder. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. In April 2007, VA and the appellant filed in the Court of Appeals for Veterans Claims a joint motion to remand this appeal. In the motion (at p. 5), the parties stated: Because neither a Statement of the Case nor any Supplemental Statement of the Case refers to these constitutional and statutory authorities [which were raised for the first time within that document] and because the Board did not address these arguments in its decision, the parties ask the Court to vacate the Board's decision and remand the appeal for agency consideration of these arguments and for issuance of a Supplemental Statement of the Case. In May 2007, the Court of Appeals granted that motion and ordered the matter remanded for compliance with the instructions in the joint motion, which it incorporated into its order. In January 2008, the appellant's representative submitted a memorandum of law to support her claim, along with additional evidence. Attached to that memorandum was a signed document stating that the appellant waived her right to have her case remanded to the agency of original jurisdiction for review of the additional evidence and that she acknowledged that the Board may, in considering any newly-submitted evidence in the first instance, deny her appeal. Notwithstanding the statements of the appellant's representative, since the Court of Appeals ordered this case remanded for the issuance of a supplemental statement of the case, a remand for that purpose is necessary. Accordingly, the case is REMANDED for the following action: 1. Review the appellant's arguments contained in the April 2007 joint motion for remand and the additional evidence and arguments in the appellant's January 2008 memorandum of law in support of her claim. 2. Thereafter, readjudicate the claim. If any sought benefit is denied, issue the appellant and her representative a supplemental statement of the case. After they have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ P. M. DILORENZO 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).