Citation Nr: 1018024 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 08-20 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death for the purpose of accrued benefits. ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to December 1945. In September 1963, the Veteran died. By way of background, in January 2006, the Veteran's surviving spouse filed a request to reopen a previously denied claim for service connection for the cause of the Veteran's death. In February 2007, she died. The appellant is the son of the Veteran and the above surviving spouse. In June and July 2007, the appellant filed various statements alleging that the Veteran incurred posttraumatic stress disorder (PTSD) and other mental illness as a result of active service that caused the Veteran's death. In July 2007, the Regional Office (RO) sent the appellant a request for a completed Form 21-601 (formal accrued benefits claim), which the appellant filed later that month. This appeal come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veteran's Affairs (VA) RO located in Milwaukee, Wisconsin that denied the appellant's claim for service connection for the cause of the Veteran's death for the purpose of accrued benefits (referred to therein as entitlement to "accrued and retroactive benefits"). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran served on active duty in the United States Navy during World War II between October 1942 and December 1945. In September 1963, the Veteran died. In October 1963, the Veteran's surviving spouse filed a dependency and indemnity compensation (DIC) claim. An October 1963 RO decision denied the surviving spouse's claim with regard to service connection for the cause of the Veteran's death, but granted her a widow's pension. As noted in the Introduction, in January 2006, the Veteran's surviving spouse filed a request to reopen her claim for service connection for the cause of the Veteran's death. In February 2007, she died. In June and July 2007, the appellant, their son, filed various statements alleging that the Veteran incurred PTSD and other mental illness as a result of active service that caused the Veteran's death. The appellant requested that, based thereon, "disability benefits" owed to the Veteran through September 1963 and to his surviving spouse through February 2007 be paid to the appellant. In July 2007, the RO sent the appellant a request for a completed formal accrued benefits claim, which the appellant filed later that month. Due and unpaid periodic monetary benefits to which a veteran was entitled at the time of death under existing ratings or decisions, or based on evidence in the claims file on the date of death, shall upon the death of the veteran be paid to certain survivors. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000(a) (2009). Upon the death of the veteran, benefits will be paid to the surviving spouse, and upon the death of the surviving spouse, benefits shall be paid to the veteran's children (as defined by 38 C.F.R. § 3.57). 38 C.F.R. § 3.1000(a) (2009). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C.A. § 5121(a)(5); 38 C.F.R. § 3.1000(a)(4). In each instance, the appellant's entitlement can never exceed what the veteran was entitled to when he died because the appellant effectively is placed in the Veteran's shoes for all intents and purposes ( the "Adidas Rule"). See generally, Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998); Zevalink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2009). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The record reflects that, in Supplemental Statements of the Case (SSOCs) dated June 2008 and August 2009, the RO noted that VCAA letters had been sent to the appellant informing him what was still needed from him, what the evidence must show to establish entitlement, and how he could otherwise help his claim. The Board is unable to locate evidence in the claims folder of any such letters having been sent to the appellant. Consequently, remand of this case is necessary to ensure that VCAA notice is provided. The Board recognizes that a claim for accrued benefits must be based on consideration of the evidence physically or constructively of record at the time of the Veteran's death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Thus, the appellant as a general matter cannot furnish new evidence that could be used to substantiate his claim, and VA could not develop additional evidence that would substantiate the claims of entitlement to accrued benefits. However, "[e]vidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); see also Hayes v. Brown, 4 Vet. App. 353 (1993). Thus, it is not inconceivable that the appellant could identify relevant evidence that is constructively of record, even if not currently associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Issue the appellant proper notice under 38 U.S.C.A. § 5103(a) with regard to his claim for service connection for the cause of the Veteran's death for the purpose of accrued benefits. 2. Readjudicate the issue of entitlement to service connection for the cause of the Veteran's death for the purpose of accrued benefits. The appellant and his representative should be provided with a Supplemental Statement of the Case ("SSOC"). After the appellant and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further 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. 2009). _________________________________________________ MICHAEL LANE 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) (2009).