Citation Nr: 1319497	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  09-19 188	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for dependency and indemnity benefits (DIC), death pension, and accrued benefits.

2.  Entitlement to DIC, death pension, and accrued benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

The Veteran served on active duty from November 1942 to February 1946.  He died in February 1986 and the appellant seeks surviving spouse benefits.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO).

A March 2012 Board decision denied the appellant recognition as the Veteran's surviving spouse.  The appellant appealed that decision to the United States Court of Appeals for Veterans Claims.  Pursuant to a Joint Motion to Vacate and Remand, the Court, in a December 2012 Order, vacated the March 2012 decision and remanded the appeal to the Board.  

The issue of entitlement to DIC, death pension, and accrued benefits is remanded to the RO via the Appeals Management Center, in Washington, D.C.

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).


FINDING OF FACT

A December 2012 Joint Motion found that the appellant qualified as an eligible surviving spouse of the Veteran.



CONCLUSION OF LAW

The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of establishing eligibility for DIC, death pension, and accrued benefits have been met.  38 C.F.R. § 3.55 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In a December 2012 Order, the Court vacated the Board's March 2012 decision and remanded the claim for action consistent with the terms of the December 2012 Joint Motion.  In the December 2012 Joint Motion, the parties agreed that the provisions of 38 C.F.R. § 3.55(a)(3) (2012), when applied to the facts of this case, resulted in a finding that the appellant was the surviving spouse.  38 C.F.R. § 3.55(a)(3) (2012).  Accordingly, the Board finds that the appellant is entitled to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for DIC, death pension, and accrued benefits.


ORDER

Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for DIC, death pension, and accrued benefits, is granted.


REMAND

The December 2012 Joint Motion noted that appellant's claim of entitlement to DIC, death pension, and accrued benefits had never been adjudicated on the underlying merits by the Agency of Original Jurisdiction (AOJ).  Therefore, the Joint Motion instructed the Board to return that issue to the agency of original jurisdiction for initial development and adjudication on the merits.

Accordingly, the case is REMANDED for the following action:

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.  Issue a decision which addresses the issue of entitlement to DIC, death pension, and accrued benefits as a surviving spouse.  If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs