Citation Nr: 1624280	
Decision Date: 06/16/16    Archive Date: 06/29/16

DOCKET NO.  12-24 123A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to death pension benefits.


ATTORNEY FOR THE BOARD

J. Davitian, Counsel









INTRODUCTION

The Veteran served on active duty from August 1959 to August 1979.  He passed away in July 1998.  The appellant is his surviving spouse.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2011 decisional letter of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, which denied the benefit sought on appeal.  The Board remanded this claim for additional development in December 2014.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Supplemental Statements of the Case (SSOCs) dated in October 2015 and February 2016 refer to correspondence from the Social Security Administration (SSA) regarding the appellant's 2015 income and medical expenses.  However, a review of the eFolders reveals that they are negative for any evidence from SSA regarding the appellant's 2015 income and medical expenses. 

This evidence would be relevant to the claim on appeal because entitlement to death pension depends in part on a surviving spouse's countable annual income.  The calculation of countable annual income depends on medical expenses.  See 38 C.F.R. §§ 3.3(b)(4) and 3.272(g) (2015).  

There are heightened obligations to assure that the record is complete with respect to Federal Government records.  38 U.S.C.A. § 5103A (2015); 38 C.F.R. § 3.159(c) (2015).  Moreover, the nature of the Board's de novo review means that it is the Board's responsibility to review all evidence (such as evidence from SSA) and determine for itself whether or not it supports claim on appeal.  This responsibility cannot be assumed by the AOJ.  In this regard, it is clear that decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record.  38 U.S.C.A. § 7104 (West 2015).  Decisions of the Board are to be based on a review of the entire record.  38 C.F.R. § 19.7 (2015).

The Board observes that this is the second time during this appeal that it has determined that a relevant document has not been associated with the record.  The Board's December 2014 remand notes that the record did not include the Veteran's notice of disagreement.  

The Board also finds that updated information as to any changes to the appellant's income and expense information is necessary for the proper adjudication of this claim.  

Accordingly, the case is REMANDED for the following action:

1.  Conduct a search to locate the missing correspondence from SSA regarding the appellant's 2015 income and medical expenses, as referred to by the October 2015 and February 2016 SSOCs.  

If the missing correspondence is not located, obtain duplicate information from SSA regarding the appellant's income and medical expenses, to include for year 2015.  

Document the efforts made to obtain these records along with any negative responses.

2.  Contact the appellant and request that she provide updated income and expense information, to include updated Eligibility Verification Reports.  

3.  Then, readjudicate the appellant's claim.  If the benefit sought on appeal remains denied, the appellant should be provided an SSOC and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

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 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 2015).



_________________________________________________
M. E. LARKIN
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).