Citation Nr: 18155363 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 12-25 328 DATE: December 4, 2018 ORDER Entitlement to recognition as the Veteran’s spouse for purposes of eligibility to Dependency and Indemnity Compensation is granted. REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) is remanded. FINDINGS OF FACT 1. The appellant and the Veteran were married in September 1987. 2. The appellant’s marriage to the Veteran ended as the result of his death in September 1991. 3. The appellant filed a claim for benefits with the Social Security Administration in September 1991. 4. The appellant remarried to E.B. on November 11, 2006, and has remained married to E.B. 5. The appellant’s claim for DIC benefits was received by VA in April 2011. CONCLUSION OF LAW The criteria for recognition as the Veteran’s spouse for purposes of eligibility to Dependency and Indemnity Compensation (DIC) from September 30, 1991 to November 11, 2006 have been met. 38 U.S.C. §§ 101(14), 103, 1310, 1311 (2014); 38 C.F.R. §§ 3.5, 3.50, 3.55, 3.153 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1968 to December 1970. He died in September 1991. The appellant was married to the Veteran at the time of his death, and seeks recognition as his surviving spouse for purposes of entitlement to DIC benefits. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2011 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The appellant testified before the undersigned at a Travel Board hearing in August 2013. A transcript of the hearing has been associated with the claims file. This matter was before the Board in March 2015 at which time it was remanded for additional development. Thereafter, in a May 2017 decision, the Board denied entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to DIC benefits. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2018, pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s attorney and the Secretary of Veterans Affairs (Secretary), the Court issued an Order vacating the Board’s May 2017 decision denying entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to DIC benefits and remanding the claim to the Board for further action consistent with the terms of the JMR. 1. Entitlement to recognition as the Veteran’s spouse for purposes of eligibility to DIC. DIC is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected cause of death. See 38 U.S.C. § 101(14), 1310, 1311; 38 C.F.R. § 3.5. Generally, a surviving spouse means a person who was legally married to a veteran at the time of his or her death, and has not since remarried. See 38 U.S.C. §101(3); 38 C.F.R. § 3.50(b). Exceptions to the remarriage bar include a voiding or annulment of remarriage. See 38U.S.C. §§ 103(d)(1), 1311(e); 38 C.F.R. § 3.55(a)(1). Effective January 1, 2004, remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of specified benefits, such as DIC, to such person as the surviving spouse of a veteran. 38 U.S.C. § 103(d)(2)(B); 38 C.F.R. § 3.55(a)(10). When an application on any document indicating an intent to apply for survivor benefits is filed with either the Secretary of VA or the Commissioner of Social Security, it shall be deemed to be an application for benefits for both Social Security Administration (SSA) and VA. 38 U.S.C. § 5105. Specifically, an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security, filed with SSA on for after January 1, 1957, will be considered a claim for VA death benefits, and to have been received by VA as of the date of receipt at SSA. 38 C.F.R. § 3.153. Analysis The appellant contends that she should be recognized as the Veteran’s spouse for purposes of eligibility for DIC benefits. Specifically, she contends that she is entitled to DIC benefits from the date of the Veteran’s death to the date she remarried to E.B on November 11, 2006. In support of this assertion, the appellant’s attorney contends that the appellant filed a claim for SSA benefits following the death of the Veteran in September 1991. He argues that the claim for SSA benefits is also a claim for VA benefits. In correspondence from the SSA received in November 2016, it was noted that the appellant filed for and received benefits from September 1991 to May 2017. The SSA indicated that there was no electronic record of the appellant’s application, however, the master beneficiary record shows the dates of filing and benefits received per policy and entitlement. Notwithstanding, it was noted that a proper application was filed. The appellant’s claim for DIC benefits was received in April 2011. She reported that she married E. B. on November 11, 2006. After a review of the evidence, the Board finds that entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to DIC benefits is warranted from September 30, 1991 to November 11, 2006. In this regard, the Board notes that the current VA Adjudication Procedure Manual (M21-1) provides that, under 38 C.F.R. 3.153, an Application for Survivors Benefits (Form SSA-24) filed as a result of the death of a veteran with the SSA on or after January 1, 1957, shall be considered as a claim for VA survivors benefits, even if VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension is not received by VA. See M21-1, Part IV.iii.3.A.3.a. However, the Court of Appeals for Veterans Claims (Court) has held that neither the VA regulations nor the prior versions of the M21-1 contained any specifically prescribed form or forms agreed upon by the VA and SSA as required by 38 C.F.R. § 3.153. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 118-19 (2009) (finding that there was a “wholly unclear picture of what constitutes a ‘jointly prescribed form’“ based on the M21-1 sections provided to the Court, which did not specify a particular SSA form; the Secretary’s indication at oral argument that there had never been an individual ‘jointly prescribed form’ promulgated between VA and SSA; the Secretary’s acknowledgement that, in practice, a claim for survivor’s benefits can be filed on any form when the applicant reflects an intent to seek such benefits; and the Secretary’s failure to cite to any SSA regulation as to what the ‘joint prescribed form’ might be along with advising that SSA has moved away from using paper forms to taking claims in-person or by telephone); Kay v. Principi, 16 Vet. App. 529, 533 (2002) (finding that the Board failed to address the applicable M21-1 provisions, which provided a broad definition for the types of applications that are considered joint applications for VA and SSA benefits, as well as improperly relying on current SSA forms thereby assuming that the forms for SSA death benefits were the same at the time of the appellant’s claim in 1981 as they were at the time of its decision). The Board acknowledges that there is no indication that an application for SSA benefits was filed on a jointly developed form. However, the Court has held that neither the VA regulations nor the prior versions of the M21-1 contained any specifically prescribed form or forms agreed upon by the VA and SSA as required by 38 C.F.R. § 3.153. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 118-19 (2009). Notably, the SSA has reported that there is no electronic copy of the appellant’s application for benefits. However, as detailed herein, correspondence from the SSA indicated that the appellant indeed filed for and received benefits following the Veteran’s death in September 1991. Thus, the Board finds that, per the provisions of 38 C.F.R. § 3.153 described above, the appellant’s September 1991 application for SSA benefits is also a claim for VA benefits. Additionally, the appellant was remarried on November 11, 2006. Her remarriage is thus a bar to recognition as the Veteran’s spouse for purposes of eligibility to DIC from November 11, 2006. However, as the Board has determined that the appellant’s September 1991 SSA application is also a claim for VA benefits the, the Board finds that the appellant’s remarriage is not a bar to recognition as the Veteran’s spouse prior to November 11, 2006. In sum, the Board finds that the Veteran’s September 1991 SSA benefits claim is also a claim for VA benefits. Thus, resolving doubt in favor of the appellant, entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to DIC benefits from September 30, 1991 to November 11, 2006, the date the appellant married E.B., is warranted. REASONS FOR REMAND 1. Entitlement to DIC is remanded. The appellant’s claim for DIC was denied because she was not recognized as the Veteran’s surviving spouse for the purpose of establishing entitlement to DIC benefits. However, the decision herein determined that the appellant is recognized as the Veteran’s spouse from September 30, 1991 to November 11, 2006. In light of the foregoing, the DIC claim must be readjudicate on remand. The matter is REMANDED for the following action: 1. Readjudicate the appellant’s claim of entitlement to DIC benefits from September 30, 1991 to November 11, 2006. If the benefit sought is not granted, provide her and her attorney with a supplemental statement of the case and an appropriate opportunity to respond. 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. §§ 5109B, 7112 (2012). MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel