Citation Nr: 1511188 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 13-06 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purpose of Department of Veterans Affairs benefits, including Dependency and Indemnity Compensation (DIC) benefits, death pension benefits and accrued benefits. REPRESENTATION Appellant represented by: Daniel B. Mahan, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1940 to June 1945; he died in May 2004. The appellant is seeking recognition as the surviving spouse of the Veteran for the purpose of Department of Veterans Affairs benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 determination issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin that denied the appellant's claims for Dependency and Indemnity Compensation (DIC) benefits and death pension benefits on the ground that the record lacked evidence sufficient to establish recognition of the appellant as the Veteran's surviving spouse for VA benefit purposes. The PMC also denied the appellant's claim for accrued benefits. The Board notes that, although jurisdiction of the Veteran's claims file lies with the Regional Office (RO) in Jackson, Mississippi and the appellant resides in Mississippi, pension awards from that RO are processed at the Milwaukee Pension Management Center (PMC). The appellant's January 2011 Notice of Disagreement (NOD) indicates that she disagreed with the denial of all of her claims. But the Statement of the Case (SOC) issued by the Jackson RO, in February 2013, only listed recognition as surviving spouse and entitlement to accrued benefits as the issues on appeal. However, recognition as the surviving spouse of a veteran is a condition precedent to receipt of benefits based on the service of said veteran. Therefore in order to put the case in the proper legal stance, the Board has recharacterized the issue on appeal as shown on the title page. In addition to the paper claims file, there is an electronic file associated with the claim. The electronic file does not currently contain evidence pertinent to the claim that is not already included in the paper claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A determination has been made that additional evidentiary development is necessary. Accordingly, further appellate consideration will be deferred; this case is remanded for action as described below. In this case, the octogenarian appellant has difficulty with her memory and thus far has not been able to provide details about either her first marriage or the Veteran's first marriage. In the VA Form 21-534 she submitted in August 2009, the appellant provided the first, middle and last names of her first husband. An internet search by the Board quickly revealed that a United States Army veteran with that name had died in 1984, that he was married at the time of his death, that his surviving spouse died in 2014, the birthdates for both and that both are buried in a cemetery in Marshall County, Mississippi. The obituary for the widow indicated that she has surviving family members in Mississippi. There is no indication that the PMC or the RO took any steps to get this sort of information which could likely provide details about when the two of them were married and when the appellant and her ex-husband were divorced. On remand, such inquiries should be made. Furthermore, the death certificate for the Veteran in this case indicates that he was an employee of the United States Postal Service (USPS) and the appellant has submitted records indicating that she was in receipt of United States Civil Service pension benefits based on the Veteran's employment. Review of the evidence of record indicates that the Veteran began working for the USPS in the early 1950s. There is no indication that the PMC or the RO used this information to contact any federal agency in order to obtain information about the Veteran's marital status. On remand, the RO should contact the appropriate federal agencies to obtain this information. Finally, the Board notes that the appellant obtained representation from an attorney about one year ago. To date, the attorney apparently has not been asked by the RO to provide assistance in seeking the divorce documents associated with the first marriages of the Veteran and the appellant. On remand, such assistance should be sought. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford the appellant full procedural due process, the case is REMANDED for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159 is completed. 2. Contact the USPS, the Office of Personnel Management (OPM) and any other appropriate federal agency to obtain official documentation of the Veteran's marital status between 1950 and 2004. Document all queries made and all of the records obtained are to be associated with the claims file. 3. Undertake inquiries regarding the man named by the appellant as her first husband in the VA Form 21-534 in August 2009, in order to ascertain when he married his second wife who died in 2014. Document the results of the inquiries in the claims file. 4. Contact the appellant's attorney, provide him with the pertinent information discovered pursuant to the above action paragraphs and request his assistance in obtaining the divorce decrees from the first marriages of the appellant and the Veteran. Associate any documents submitted by the attorney in response with the claims file. 5. Conduct any other development deemed necessary for the adjudication of the appellant's claim, to include all sub issues. 6. After all appropriate development has been accomplished, consider all of the evidence of record, including all newly added evidence and readjudicate the issue and sub issues on appeal. 7. If any aspect of the benefit sought on appeal is denied, provide a supplemental statement of the case (SSOC) to the appellant and her attorney. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue and sub issues currently on appeal. An appropriate period of time for response must be given. 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). 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).