Citation Nr: 1731069 Decision Date: 08/03/17 Archive Date: 08/11/17 DOCKET NO. 13-28 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin. THE ISSUE Entitlement to payment of the total amount of retroactive benefits awarded in a February 8, 2012 rating decision. INTRODUCTION The Veteran had active service from November 1967 to August 1970. He died in December 2004. The appellant is his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 8, 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was certified to the Board by the VA Pension Management Center in Milwaukee, Wisconsin. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The February 8, 2012 rating decision initiated consideration of entitlement to retroactive VA compensation benefits for disability or death caused by a condition presumptively associated with herbicide exposure following the Veteran's death, under the special rules promulgated pursuant to orders of a United States District Court in the class action of Nehmer v. United States Veterans' Administration. See 38 C.F.R. § 3.816 (2016). The February 8, 2012 rating decision resulted in the award of a calculated amount of retroactive compensation benefits of $139,809.00. In a VA letter dated in March 2012, the appellant was notified of the decision, and informed that he was entitled to a portion of the retroactive compensation benefits in the amount of $69,904.50, based on being a recognized class member. The appellant filed an August 2012 notice of disagreement seeking payment of the full amount of retroactive compensation awarded in the February 8, 2012 rating decision. The Board observes that a statement of the case (SOC) was issued for this appeal on October 17, 2013; however, such was not sent to the appellant's address as indicated by the appellant in correspondence received in September 2013, just a month prior to the issuance of the SOC. A substantive appeal with respect to this appeal to the Board is not of record, although the Veterans Appeals Control and Locator System (VACOLS) indicated such was received on October 18, 2013, one day after the SOC was issued. However, in an undated VACOLS screenshot the October 18, 2013 receipt date of the substantive appeal was crossed out and a handwritten note indicated, in part, that a supplemental statement of the case (SSOC) was necessary with a subsequent 60 day appeal period because the VA Form 9, substantive appeal, was received prior to the SOC. The record does not reflect a SSOC was issued to the appellant. Furthermore, while subsequent VA correspondence reflected the appeal was continued, such as January 2017 VA correspondence which indicated a Board video conference hearing was scheduled for February 27, 2017, all such subsequent VA correspondence was addressed to the deceased Veteran at his last address of record as contained under his profile within the Veterans Benefits Management System with the exception of a recent February 2017 letter, which was addressed to the appellant. However, even the the February 2017 letter, while addressed to the appellant, was sent to the deceased Veteran's last address of record. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). Thus, the record does not reflect the appellant was lead to believe an appeal was perfected. Consequently, the Board finds a remand is warranted for the issue of entitlement to payment of the full amount of retroactive VA compensation benefits awarded by the February 8, 2012 rating decision, so that a SOC can be properly issued to the appellant with an appropriate period for response afforded. Accordingly, the case is REMANDED for the following action: Re-issue an SOC to the appellant, pursuant to the NOD received in August 2012, as to the March 2012 RO notice of payment to the appellant of less than the total amount of retroactive VA compensation benefits awarded by the February 8, 2012 rating decision. Ensure that the SOC contains appellate rights and is sent to the appellant's current address. The appellant must be afforded an appropriate period for response. Only if a timely substantive appeal is received for the issue, should the issue be forwarded to the Board for appellate consideration. 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 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), only a decision of the Board 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) (2016). ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel