Citation Nr: 1330703	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  07-07 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to death pension based on countable income.

(The issue of entitlement to service connection for the cause of the Veteran's death is the subject of a separate decision).


REPRESENTATION

Appellant represented by:	Michael Viterna, Attorney


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to June 1983.  He died in March 2001 and the Appellant is his surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  The Veteran testified at a Board hearing at the RO in Atlanta, Georgia in September 2008.  This transcript has been associated with the file.  The Appellant was notified in July 2013 that the Judge who conducted her hearing had retired from the Board and that she was entitled to a new hearing before another Judge who would ultimately decide her claim.  The Appellant was notified if she did not respond to this letter the Board would proceed with her claim based on the evidence of record.  As the Appellant has not responded, the Board has reviewed the evidence of record and determined a remand is necessary.

In a December 2008 decision the Board denied entitlement to death pension based on countable income.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2011 the Court issued a memorandum decision vacating the Board's denial of the Appellant's death pension claim and remanding the matter for further proceedings.  The case was again before the Board in November 2011 at which time it was remanded for additional development. 

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

As was discussed in the November 2011 Remand, the RO needs to address the financial information provided by the Appellant for the time period prior to March 2004.  See also January 2011 Memorandum Decision.  The RO was instructed to review the evidence for that time period, determine if the Appellant's income was excessive for purposes of entitlement to death pension benefits, and issue a Supplemental Statement of the Case.  That has not been done and the claim must be remanded.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Appellant with proper notice on substantiating her claim of entitlement to death pension.

2.  The RO should review the claims file and adjudicate the issue of whether the Appellant is eligible for death pension benefits.  The RO should consider the financial information for the entire time period between May 2001 and March 2004.

3.  After completing the above, and any other development deemed necessary, the RO should readjudicate the Appellant's claim.  If the benefits sought on appeal are not granted, the Appellant and her representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



_________________________________________________
KELLI A. KORDICH
Acting 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).