Citation Nr: 1334184 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 05-20 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than October 1, 2003 for the award of nonservice-connected (NSC) death pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from February 1972 to February 1976 and from March 1977 to August 1989. The Veteran died in May 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2003 administrative decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). The claims file is now in the jurisdiction of the Oakland, California RO. In October 2008 and in October 2009, the case was remanded for additional development and to satisfy notice requirements. The Board notes that it has reviewed both the physical claims file and Virtual VA to ensure that the complete record is considered. The issue of whether new and material evidence has been submitted to reopen a claim of service connection for the cause of the Veteran's death has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if action on her part is required. REMAND Pursuant to the Board's October 2008 and October 2009 remands, the RO contacted the Social Security Administration (SSA) and requested a copy of the appellant's application form for SSA benefits which had resulted in the appellant receiving a May 24, 1999 determination letter from the SSA which showed that she was found entitled to a one-time benefit payment for the Veteran's death. If the appellant's 1999 application form could not be secured and associated with the record, SSA was to certify that the requested document did not exist or was not in their possession. In January 2013, the SSA sent VA a response letter which certified that "a thorough search of our files has been made and that no documents, records, or other materials authorized for release by the consent of [the appellant] can be provided because no records were found. The application filed by [the appellant] [on] May 18, 1999, for the lump-sum death benefit on the record of [the Veteran], was not made in paper form. This record is electronic only." Thereafter, the RO issued a supplemental statement of the case (SSOC) in January 2013 (which was re-sent to the appellant at her correct address in April 2013) which continued to deny the claim. The Board's October 2008 and October 2009 remands had specifically instructed the RO to "advise the appellant of what the [1999] SSA claim form shows (and, if it is unavailable, of that fact)" prior to re-adjudicating the claim and issuing an SSOC. In this case, the RO failed to advise the appellant that the 1999 SSA claim form is unavailable (as evidenced by the January 2013 response letter from the SSA) prior to re-adjudicating the claim and issuing an SSOC. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following: 1. The RO must advise the appellant that the 1999 SSA claim form is unavailable (as evidenced by the January 2013 response letter from the SSA). She should have opportunity to respond/supplement the record. 2. After the development sought above is completed, the RO should arrange for any further development suggested by any additional evidence received, and then review the record and re-adjudicate the claim on appeal. If it remains denied, the RO should issue an appropriate SSOC and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ GEORGE R. SENYK 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) (2013).