Citation Nr: 1311519 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-47 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) and accrued benefits to include the issue of whether the appellant may be considered to be the Veteran's surviving spouse for the purposes of such benefits. 2. Entitlement to VA improved death pension benefits to include the issue of whether the appellant may be considered to be the Veteran's surviving spouse for the purposes of such benefits. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from March 1943. He died in October 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Philadelphia, Pennsylvania, Regional Office, which determined that the appellant was not the Veteran's surviving spouse for VA purposes and denied entitlement to VA DIC, improved death pension benefits, and accrued benefits. The Board has reviewed both the claims file and the "Virtual VA" file so as to insure a total review of the evidence. In her July 2009 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (VA Form 21-534), the appellant indicated both that she was not seeking service connection for the cause of the Veteran's death and the Veteran had not ever filed a claim for VA benefits. Notwithstanding the appellant's statements, the Regional Office nevertheless denied entitlement to VA DIC benefits, improved death pension benefits, and accrued benefits. As the appellant has perfected an appeal from the denial of all three issues, they are presently before the Board, and will be addressed below. This appeal is REMANDED to the VA Regional Office (RO) in Atlanta, Georgia, via the Appeals Management Center (AMC) in Washington, DC. REMAND The appellant asserts that she is the Veteran's surviving spouse for VA purposes as she was married to the Veteran at the time of his death in October 1986; remarried in August 1992; and subsequently divorced in May 2006. Generally, a veteran's surviving spouse is eligible for VA benefits, including DIC benefits, improved death pension benefits, and accrued benefits, when a veteran dies. A "surviving spouse" is defined as a person of the opposite sex who was the spouse of the veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death and has not since remarried. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b) (2012). There are certain exceptions to the remarriage bar contained in 38 C.F.R. § 3.55(a) (2012). In her July 2009 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (VA Form 21-534), the appellant indicated that she had remarried in August 1992 and divorced in May 2006. The marriage certificate and divorce decree associated with the appellant's 1992 marriage and subsequent 2006 divorce are not of record. VA should obtain all relevant documentation which could potentially be helpful in resolving the appellant's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). From the evidence of record before the Board, it does not appear that the appellant has been provided a VCAA notice which addresses the issues of entitlement to VA DIC, improved death pension, and accrued benefits, to include the issue of whether the appellant may be considered to be the Veteran's surviving spouse for the purposes of such benefits. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has invalidated the regulations which empowered the Board to issue written notification of the VCAA to appellants. Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following action: 1. Review the record and ensure that all notification and development action required by the VCAA is completed. The AMC should ensure that the notification requirements and development procedures are fully met as the issues of the appellant's entitlement to VA DIC, improved death pension, and accrued benefits, to include the question of whether the appellant may be considered to be the Veteran's surviving spouse for the purposes of such benefits. 2. Contact the appellant and request that she submit copies of her August 1992 marriage certificate and May 2006 divorce decree for incorporation into the record. 3. Readjudicate the claims on appeal. If the benefits sought on appeal remains denied, the appellant should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (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. 2012). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).