Citation Nr: 1751512	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  14-02 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to recognition as the Veteran's surviving spouse for the purposes of establishing entitlement to Dependency and Indemnity Compensation (DIC) benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant



ATTORNEY FOR THE BOARD

M. R. Woodarek, Associate Counsel


INTRODUCTION

The Veteran serviced on active duty with the Navy from June 1949 to April 1953.  The Veteran died in August 2011.  The Appellant is claiming VA benefits as his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota.  During the pendency of the appeal, jurisdiction was transferred to the VA Regional Office in Phoenix, Arizona (RO).

The Appellant testified before the undersigned Veterans Law Judge in a March 2016 Travel Board hearing.  A copy of the hearing transcript has been associated with the record.

The appeal was previously before the Board in August 2016, and was remanded for additional development.  Unfortunately, substantial compliance with the August 2016 Board remand directives was not obtained, and an additional remand is necessary prior to appellate adjudication of the claim.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

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


REMAND

Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall, 11 Vet. App. 268.  

In August 2016, the Board remanded the appeal to obtain a copy of any relevant divorce or separation documents from 1965 to 1967 from the appropriate court in Orange County, California.  See 38 C.F.R. § 3.159 (2017).  Within the August 2016 remand directive, the Board requested that all attempts to obtain these records should be documented in the claims file, and that if the records are determined to be unavailable, such should be noted in the record.  To date, it appears as though the AOJ has not conducted any of the requested development as there are no documented attempts to obtain the relevant records and no documented memorandums of unavailability of the requested records within the Veteran's claims file.  As the AOJ did not conduct the full development as requested, there has not been substantial compliance with the Board's August 2016 remand directives, and additional remand is necessary prior to appellate consideration of the claim.  Stegall, 11 Vet. App. 268.  

Accordingly, the case is REMANDED for the following action:

Obtain and associate with the claims file any legal documents relevant to the Appellant's filing for divorce or separation from the appropriate court in Orange County, California from 1965 to 1967.  All attempts to obtain these records should be documented in the claims file.  If the records are determined to be unavailable, that should be noted in the record.  If any records cannot be obtained after reasonable efforts have been made, notify the Appellant and her representative, and allow her the opportunity to provide such records.

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).

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).




_________________________________________________
K. PARAKKAL
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) (2017).