Citation Nr: 1320351 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 04-16 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 2. Entitlement to an effective date earlier than January 16, 2002, for the award of a total disability rating based on individual unemployability (TDIU) for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to November 1947. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2002 and January 2003 decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2004, the appellant testified at a hearing before a Decision Review Officer at the RO. A transcript of this hearing is associated with the claims file. The Board acknowledges that it was explained in the Board's previous remand that, in an October 2011 letter, the appellant asserted that there was clear and unmistakable error (CUE) in previous rating decisions and that the Veteran should have been rated at 100 percent back to 1989. At that time, the Board recharacterized the issue on appeal as entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, to include whether there was CUE in the assignment of TDIU. However, "without the veteran having a claim pending at the time of death, the surviving spouse has no claim upon which to derive . . . her own application." Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). Therefore, because the Veteran did not have any claims for CUE pending at the time of his death, the appellant is not a proper claimant to file an independent claim for CUE in previous rating decisions. After carefully reviewing the claims file, however, the Board finds that the Veteran did in fact have a pending claim at the time of his death resulting from the assignment of TDIU that was granted in an August 2002 rating decision. Specifically, the Veteran died within the one-year time period following this rating decision, and the downstream earlier effective date matter remained pending at the time of his death. See Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007) (explaining that, under 38 C.F.R. § 3.160(c) and (d), a "pending claim" is defined by VA regulation as "an application, formal or informal, which has not been finally adjudicated," and a "finally adjudicated claim" is one "which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier"). Following the appellant's claim for death benefits, the RO denied any pending claim for accrued benefits in December 2002 by stating generally that "[w]e can't approve your claim for accrued benefits because VA didn't owe the veteran any money." Significantly, in reviewing her earlier statements, the Board finds that the appellant timely disagreed with the RO's December 2002 decision; her February 2003 statement clearly stated that the Veteran "should have been 100% [prior to 2001] due to his unemployab[ility]." Accordingly, the Board finds that the appellant has a valid earlier effective date claim for accrued benefits purposes, which encompasses essentially the same arguments that she set forth when asserting CUE in previous rating decisions (that the effective date assigned was incorrect and that the Veteran should have been receiving TDIU many years earlier). Thus, her contentions are construed as part of a valid accrued benefits claim for an earlier effective date rather than as a prohibited freestanding claim for CUE. Accordingly, the issues on appeal have been recharacterized in light of this procedural history. 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 Although the Board sincerely regrets any additional delay, further development is necessary with respect to the appellant's earlier effective date claim for accrued benefits. As explained in the Introduction, inasmuch as the Veteran's assignment of an effective date for TDIU was not "a finally adjudicated claim" at the time of his death, the appellant's application for accrued benefits and assertion of error with an effective date of January 16, 2002, was a valid accrued benefits claim. Moreover, the appellant timely disagreed with the RO's December 2002 denial of accrued benefits by asserting that the Veteran "should have been 100% [prior to 2001] due to his unemployab[ility]." As noted in 38 C.F.R. § 20.201, a Notice of Disagreement need not contain specific language and only needs to show terms that can be reasonable construed as a disagreement with the rating decision. In this case, the Board finds the February 2003 statement clearly reflects a disagreement with the effective date assigned for TDIU for accrued benefits purposes. However, the claims file does not contain any Statement of the Case (SOC) for this issue, and the Board must therefore remand it for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Furthermore, the additional development needed in support of the accrued benefits claim for an earlier effective date may directly impact the appellant's entitlement for DIC benefits under 38 U.S.C.A. § 1318. As such, adjudication of the appellant's DIC claim must be deferred pending the completion of development requested on remand. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following actions: (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. The AOJ should issue a statement of the case that addresses the issue of entitlement to an effective date prior to January 16, 2002, for the assignment of a TDIU for accrued benefits purposes. The appellant should be informed that, in order to perfect an appeal of this issue to the Board, she must file a timely and adequate substantive appeal following the issuance of the SOC. 2. After allowing an appropriate time for response, readjudicate the issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and her representative an appropriate opportunity to respond. The case should then be returned to the Board, as appropriate. 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 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). _________________________________________________ WAYNE M. BRAEUER 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).