Citation Nr: 1323493	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  06-34 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether the appellant may be recognized as the surviving spouse of the Veteran for purposes of entitlement to Department of Veterans Affairs (VA) death benefits.


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The Veteran served on active duty from November 1953 to August 1954 and died in September 1996.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 determination of the Department of Veterans Affairs (VA) Regional Office (RO).  By decision in March 2009, the Board denied the claim.  The appellant filed an appeal with the United States Court of Appeals for Veterans Claims (Court) which, in an October 2010 decision, vacated the Board's determination.  In a September 2011 decision, the Board found new and material evidence had been received, and remanded the claim in order to ensure due process.  
The case is again before the Board for appellate consideration.
 
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

In its October 2011 decision, the Board noted that since N.P. is currently recognized as the surviving spouse of the Veteran, the outcome of the appellant's case could affect her benefits.  Therefore, this is a contested claim and all pertinent procedures must be followed.  The RO was directed to comply with the contested claims procedures.  A review of the record shows that the RO sent a February 2012 letter to N.P.  This letter, however, only noted that the appellant had filed an appeal regarding her claim to the Board the Veteran's surviving spouse.  It did not comply with the directive to follow contested claims procedures.  The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court.  The Court has stated that compliance by the Board or the RO is neither optional nor discretionary.  Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

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.  Review the claims folder and ensure that all contested claims procedures have been followed.  This should include providing N.P. with the content of the statement of the case, the supplemental statements of the case and the appellant's substantive appeal.  The RO should provide N.P. the opportunity to respond thereto.  See 38 C.F.R. §§ 19.100-19.102 (2012).

2.  Based on the evidence received (if any), the RO should initiate all appropriate development.

3.  After any development has been completed, the RO should again review the record and determine if the appellant should be recognized as the surviving spouse of the Veteran for VA death benefits purposes.  If the claim remains denied, the RO should furnish a supplemental statement of the case to both the appellant and N.P. and each party should be given the opportunity to respond.

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 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).



_________________________________________________
ALAN S. PEEVY
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).