Citation Nr: 1316250 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-02 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to VA death benefits including Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits. [redacted] ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1972. He died on May [redacted], 2003. The appellant is his son. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 determination of the Department of Veterans Appeals (VA) Regional Office (RO) in Atlanta, Georgia. The appellant is unrepresented. The issue certified on appeal is whether a timely substantive appeal was filed with respect to the issue of entitlement to DIC. Because, however, the Board finds the November 2004 RO determination in which DIC was denied did not become final, the claim remains pending. The appellant filed a notice of disagreement with the November 2004 RO determination after which a statement of the case was issued, in October 2007. That same month the appellant submitted additional evidence, to include statements from both he and his mother to the effect that at the time of the Veteran's death the appellant was between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution, and/or detailing childhood ailments precluding him from maintaining full time employment rendering him incapable of self support prior to age 18. On the VA Form 9, he reported that he was listed as the Veteran's dependent on all tax records from 1996 to 2002 and on all official school records, including grant eligibility records, until the Veteran's death in 2003, at which time the appellant was a junior in college. Although the November 2009 statement of the case addressing whether a timely appeal was filed indicates the VA Form 9 in association with the appellant's original claim was received on March 10, 2008, the appellant's evidence accompanying the VA Form 9 is date stamped as received on January 11, 2008. The March 2008 correspondence is from the Veteran's former spouse, not the appellant. Regardless, and although the October 2007 submission from the appellant is date stamped as having been received by VA several days before the issuance of the statement of the case, it is clear from review of the statement of the case that the additional evidence was not considered by the RO. This evidence is new and material, particularly because of the reasons cited for the denial in the October 2007 statement of the case, and in the absence of RO consideration, precluded the November 2004 rating decision from becoming final. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, and notwithstanding the RO's determination that the substantive appeal was not timely, the appeal stems from the November 2004 rating decision. Therefore, the Board has recharacterized the issue to comport with the evidence. The appellant testified at the RO before a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims file. 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 The appellant asserts entitlement to VA death benefits including DIC, death pension, and accrued benefits. On the VA Form 9, he reported that he was listed as the Veteran's dependent on all tax records from 1996 to 2002. The duty to assist includes obtaining records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(1), (3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Efforts to obtain Federal records must continue until they are obtained or until it is reasonably certain that they do not exist or further efforts to obtain those records would be futile. See 38 U.S.C. § 5103A(b)(3) . Accordingly, the case is REMANDED for the following action: 1. After securing the proper authorization, obtain and associate with the claims folder all federal income tax records pertinent to the Veteran from 1996 to 2002. Any additional relevant records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Review the claims file to ensure that the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).