Citation Nr: 1301309 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-15 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active military service from March 1943 to December 1945. He died in February 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to the appellant's claim for non-service-connected pension benefits for accrued benefits purposes. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although a veteran's claims terminate with his death, certain survivors of a deceased veteran are eligible to receive payments from VA of accrued benefits based upon the deceased veteran's statutory entitlement to such benefits. Accrued benefits are defined as periodic monetary benefits payable under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). There are various threshold requirements that an appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). Another requirement is that a 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. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1241-1242 (Fed. Cir. 1996) (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 the time of death, the surviving spouse has no claim upon which to derive his or her own application). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. In addition, accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. See 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran'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). Review of the record shows that nonservice-connected pension benefits were granted from August 1, 2004 in an August 2004 decision. In September 2005, the RO in Milwaukee informed the Veteran that he needed to submit an Eligibility Verification Report (EVR) for the time period of August 2004 to December 2006 and verification of his medical expenses for that time period. In January 2006, the Milwaukee RO terminated the Veteran's nonservice-connected pension benefits on the basis that he did not submit the EVR and a medical expense form. In August 2006, the Veteran submitted an EVR and other information concerning his income and medical expenses in support of his claim to reinstate the nonservice-connected pension benefits. The Veteran died in February 2007. The claim for non-service-connected pension benefits was pending at the time of death. The appellant filed a claim for accrued benefits in March 2007. In the February 2008 determination and the March 2009 statement of the case, the RO denied the claim for nonservice-connected pension benefits for accrued benefits purposes on the basis that the Veteran did not submit sufficient income and net worth information in support of his claim. The RO indicated that the Veteran submitted an EVR which was received by the RO in August 2006. The RO stated that the August 2006 EVR was not fully completed and the Veteran did not report his income. The RO also indicated that it received additional EVR's and a Social Security Award letter in April 2007, after the Veteran's death. It appears that pertinent evidence was not considered by the RO in the February 2008 determination and in the statement of the case dated in March 2009. Review of the record reveals that the Veteran submitted completed EVR's and other pertinent evidence in support of his claim in November 2006; the documents were date stamped as received in the Milwaukee RO in November 2006. The pertinent evidence received on November 2006 includes EVR's showing the Veteran's income for 2004, 2005, and 2006; the letters from Social Security regarding the benefit payments to the Veteran in 2004 and 2005; and the information concerning the Veteran's medical expenses for the years 2004, 2005, and 2006. The RO does not discuss this pertinent evidence in the February 2008 determination. In the March 2009 statement of the case, the RO indicated that the Veteran did not submit any EVR's after submitting the EVR in August 2006. As noted above, the record shows otherwise. The Board finds that a remand is necessary in this appeal so that the RO may consider the pertinent evidence received on November 2006, including the EVR's showing the Veteran's income for 2004, 2005, and 2006; the letters from Social Security regarding the benefit payments to the Veteran in 2004 and 2005; and the information concerning the Veteran's medical expenses for the years 2004, 2005, and 2006, and readjudicate the claim for nonservice-connected pension benefits for accrued benefits purposes. The Board finds that a remand is necessary because the appellant may be prejudiced if the Board considers this pertinent evidence in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993) (when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby). The Board also notes that 38 C.F.R. § 19.29 (2012) provides that a statement of the case must contain a summary of the evidence of the case relating to the issues or issues with which the appellant or representative have expressed disagreement. 38 C.F.R. § 19.29. In accordance with 38 C.F.R. § 19.29, the Board must remand this evidence to the RO or AMC for initial consideration and issuance of a supplement statement of the case. Accordingly, the case is REMANDED for the following action: The AMC or RO should consider all pertinent evidence of record and readjudicate the issue of entitlement to nonservice-connected pension benefits for accrued benefits purposes. If all the desired benefits are not granted, a supplemental statement of the case should be furnished to the appellant and her representative. The case should then be returned to the Board, if otherwise in order. 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. 2012). _________________________________________________ K.J. ALIBRANDO 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) (2012).