Citation Nr: 1752435	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  09-39 196	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) benefits, death pension, and accrued benefits.


WITNESSES AT HEARING ON APPEAL

The Appellant and Her Mother


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel



INTRODUCTION

The Veteran served on active duty from December 1970 to December 1973.  He died in May 2008.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.  Jurisdiction over this claim is currently with the RO in Baltimore, Maryland.

In June 2011, the appellant testified in a Central Office Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the electronic claims file.

In August 2011, the Board remanded the issue (entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits) to the RO via the Appeals Management Center (AMC) in Washington, DC to readjudicate the claim and to issue the appellant a Supplemental Statement of the Case if the benefit sought remains denied.  The matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).  The RO's compliance with the August 2011 Board Remand is addressed in the Remand section below.

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


REMAND

In the March 2009 administrative decision on appeal, the RO denied entitlement to DIC and death pension benefits on the basis that the appellant was not the Veteran's surviving spouse for purposes of VA benefits.  In August 2011, the Board remanded the issue of entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits.  Specifically, the Board instructed the RO to readjudicate the claim (entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits) and to issue the appellant a Supplemental Statement of the Case if the benefit sought remains denied.  

Pursuant to the August 2011 Board Remand, in a July 2017 Administrative Decision, the RO recognized the appellant as the Veteran's surviving spouse for VA purposes, effectively granting the underlying threshold eligibility requirement for DIC benefits, death pension, and accrued benefits.  As such, compliance with the August 2011 Board Remand is rendered moot as the issue of the underlying threshold eligibility requirement (entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits) has been granted.  Stegall v. West, 11 Vet. App. at 268; see also 38 U.S.C.A. § 7104 (West 2014).

In this regard, the threshold eligibility requirement must be met prior to consideration of the merits of any specific claim for DIC or death pension benefits.  Here, the threshold eligibility requirement (recognition as the Veteran's surviving spouse) has been established, and the issue of entitlement to the benefits sought on the merits (entitlement to DIC benefits, death pension, and accrued benefits) must now be adjudicated by the RO prior to consideration by the Board.

Accordingly, the case is REMANDED for the following action:

After completing any necessary development, to include requesting a copy of the Veteran's death certificate from the appellant, readjudicate the appellant's appeal for entitlement to DIC benefits, death pension, and accrued benefits, recognizing the appellant as the surviving spouse of the Veteran for purposes of VA benefits.  If the determination remains adverse to the appellant, she and the representative, if any, should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further 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 2014).



_________________________________________________
A. P. SIMPSON
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).