Citation Nr: 1602089 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 11-27 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Tiffany R. Bodger, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. He died in September 2008. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The Appellant testified before the undersigned at a Travel Board hearing at the RO in July 2013. In an April 2014 decision, the Board denied the Appellant's claim for accrued benefits. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a June 2015 Order, vacated the Board's April 2014 decision and remanded the matter to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant asserts she was never properly notified of how and when to file a claim for accrued benefits after the VA was notified that the Veteran had died. During a July 2013 Board hearing, she testified that a VA fiduciary visited the Veteran's home within days of his passing. When questioned whether the VA fiduciary provided her with any forms to file for accrued benefits, she answered that "I got something in the mail and that's when I started to contact somebody because I could never get through for anybody to explain anything to me." In the JMR, the parties agreed that a remand is warranted because the Board erred in not discussing whether VA has met its duty to assist. The parties found the record is devoid of any explanation as to when VA first learned of the Veteran's death and why guardianship proceedings appear to have abruptly discontinued in September 2008 when there were benefits due to the Veteran but which remained unpaid. Nor is there any evidence to show whether VA met its duty to assist by forwarding to Appellant an application form for benefits once VA learned of the Veteran's death. Additionally, the parties noted the record contains evidence that a "fiduciary file" or guardianship folder existed yet the Board in its decision stated that it had reviewed only the "claims file and VA's Virtual System." Thus it appears the record may be incomplete as it is not clear whether the Board reviewed the fiduciary file or any file that may contain information as to when VA first learned of the Veteran's death and the reason why guardianship proceedings ceased in 2008. Pursuant to the JMR, the Board finds a remand is necessary to determine whether a fiduciary file (also known as a guardianship folder) or "First Notice of Death" folder exists in paper or electronic form and to determine whether VA met its duty to provide notice regarding accrued benefits in accordance with 38 C.F.R. § 3.150(b). Accordingly, the case is REMANDED for the following action: 1. Determine whether a fiduciary file (also known as a guardianship folder) or "First Notice of Death" folder exists in paper or electronic form (or any other file that may contain information as to when VA first learned of the Veteran's death and the reason why guardianship proceedings ceased in 2008). If so, associate the file with the Appellant's claims file. If a negative response is received from any facility, the Appellant must be duly notified and provided an opportunity to submit such records. Additionally, the AOJ should document evidence as to what steps were taken to obtain such records should be set forth in the record. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Appellant and her representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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) (2015).