Citation Nr: 1803764	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  12-34 582	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to recognition of the appellant as a helpless child of the Veteran, on the basis of permanent incapacity for self-support prior to attaining the age of 18 years.


WITNESS AT HEARING ON APPEAL

Appellant and L.H.


ATTORNEY FOR THE BOARD

A. Norwood, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from July 1928 to October 1945 and from November 1948 to May 1950. He died in June 2003. The appellant is the Veteran's surviving child.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota.

The Board has recharacterized the appellant's claim for death pension benefits as a helpless child more broadly to entitlement to recognition of the appellant as a helpless child of the Veteran, on the basis of permanent incapacity for self-support prior to attaining the age of 18 years, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim.

In a May 2017 decision, the Board remanded the claim in order to afford the appellant the opportunity for a hearing. The case has since been returned to the Board for appellate review.

In August 2017, the appellant and her witness testified during a videoconference hearing before the undersigned. A transcript of that hearing is of record. At the hearing, the VLJ granted a request to have the record held open for 90 days to allow the appellant to submit additional evidence. The appellant subsequently submitted additional evidence without a waiver of Agency of Original Jurisdiction (AOJ) initial consideration. 

The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.


REMAND

From September to October 2017, the appellant's medical records were attached to her electronic folder without a waiver of AOJ consideration. The Board notes that since the Veteran's Form 9 was not received after February 2, 2013, (here the Form 9 was received on December 11, 2012), a waiver of review by the AOJ is required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a Substantive Appeal received before February 2, 2013, then it is not subject to initial review by the Board unless the appellant waives AOJ consideration). Therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304(c) (2017).

Accordingly, the case is REMANDED for the following action:

Readjudicate the Veteran's claim for entitlement to recognition as a helpless child on the entirety of the evidence, to include that received since the issuance of the November 2013 supplemental statement of the case. If the claim remains denied, issue a supplemental statement of the case with an appropriate period of time for response.

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. §§ 5109B, 7112 (2012).




_________________________________________________
M.H. HAWLEY
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).