Citation Nr: 1319374 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 11-31 709 ) DATE ) ) On appeal certified by the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date prior to June 17, 2010, for the award of aid and attendance benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty between August 1943 and December 1945. The Veteran died in November 2004. The appellant is the Veteran's surviving spouse's conservator/custodian. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA), that granted entitlement to aid and attendance benefits. The case was certified to the Board by the Atlanta, Georgia RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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, on behalf of the surviving spouse, requested a videoconference hearing before a Veterans Law Judge. VA scheduled a hearing to occur in May 2013, however, that notice was sent to the deceased Veteran at his former address. There is no indication that the appellant, who is the conservator of the Veteran's surviving spouse was ever notified of the hearing. Hence, further development is in order. In the November 2010 rating decision on appeal, the Philadelphia RO granted the surviving spouse aid and attendance benefits, effective June 7, 2010. The appellant asserts that the original claim for benefits was filed with VA in September 2009, and that the effective date of the surviving spouse's award should be September 22, 2009. Central to this argument is that VA misplaced the claim forms, along with subsequent, repeated filings between the September 2009 date and the date at which VA finally acknowledged receiving the claim. Unfortunately, the Board is unable to adjudicate the matter at this time, as the record before the Board is incomplete. The only file presently before the Board is a temporary "NOD" file. The claim forms included are merely facsimiles, but the appellant asserts that, in addition to faxed copies, multiple hard copies of the claim were submitted on various dates before June 7, 2010. Based on the appellant's argument, as well as the representative's June 2010 statement that the claim was originally filed in September 2009, it is evident that other records relevant to the claim may exist. For example, the Veteran's claims file, if one exists, is not presently before the Board; it is reasonable that, if the appellant did submit paperwork in September 2009, such materials could have been placed within the Veteran's claims file, or in another temporary file at the Atlanta RO, considering that the claim was filed in Georgia but adjudicated by the Philadelphia, Pennsylvania RO. Therefore, the Board is remanding this matter with instructions to obtain the Veteran's claims file, any other temporary files that contain relevant pleadings, and to document all efforts to determine whether the claim was filed in September 2009. Finally, the evidence shows that the appellant in November 2012 was declared incompetent to handle funds. Accordingly, the RO must ensure that any correspondence is sent to her custodian. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Determine whether a claims file (or any other type of VA file) for the Veteran or his surviving spouse exists either at the Atlanta or Philadelphia RO. If one does exist, associate the claims file with the appellant's temporary "NOD" file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request that the Georgia Department of Veterans Services submit any evidence in its possession concerning the original filing date of the claim, and/or any filings with VA between September 2009 and June 2010. 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the appellant's satisfaction, then issue a supplemental statement of the case, and schedule the appellant/custodian for a video conference hearing before a Veterans Law Judge. The appellant and/or custodian 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). _________________________________________________ DEREK R. BROWN 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).