Citation Nr: 1803668	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-40 629A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to nonservice-connected pension.


ATTORNEY FOR THE BOARD

W.V. Walker, Associate Counsel











INTRODUCTION

The Veteran served on active duty from October 1950 to May 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012).

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


REMAND

The Veteran submitted an application for nonservice-connected pension benefits in May 2015.  The Veteran omitted his spouse's income as well as his and his spouse's net worth because he contends that his spouse is not his dependent.  In support of this contention, the Veteran points to the fact that his spouse has filed her taxes as a single filer every year since they married.  For purposes of VA pension benefits, a "dependent" is defined as a veteran's spouse or child. 38 C.F.R. § 3.23(d)(1) (2017).  A spouse is not a "dependent" if he or she resides apart from the veteran, is estranged from veteran, and does not receive support contributions from the veteran. Id.  The term is further clarified by 38 C.F.R. § 3.60 (2017) which notes that a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.  Additional guidance can be found in 38 U.S.C. § 1521(b) and (c) (2012) which indicate the annual pension rates for veterans that are unmarried (to include those that are married but not living with or reasonably contributing to the support of such veteran's spouse) and veterans that are married (those that are living with or reasonably contributing to the support of such veteran's spouse).  

The statutory and regulatory texts taken separately and together indicate that a veteran's spouse is a "dependent" if he or she lives with the veteran-regardless of the level of support the spouse receives from the veteran.  Thus, information about the Veteran's spouse's income as well as their collective net worth is required to properly decide the Veteran's application.  On remand, the AOJ must afford the Veteran another opportunity to provide the outstanding information needed to complete his application for nonservice-connected pension benefits.  

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Request the outstanding information needed from the Veteran in order to complete his application for nonservice-connected pension benefits, as well as updated information on his income and any other factors that may affect his eligibility for entitlement to pension benefits.  

2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated.  If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case.  An appropriate period of time must be allowed for response.  Thereafter, if indicated, the case must be returned to the Board for an appellate decision.

The Veteran 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. §§ 5109B, 7112 (2012).



_________________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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).