Citation Nr: 1813802	
Decision Date: 03/08/18    Archive Date: 03/14/18

DOCKET NO.  16-32 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional left upper extremity disability due to an October 14, 2010 VA surgery. 


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

S. Hoopengardner, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1945 to January 1947.  The Veteran died in October 2013 and the appellant claims as the Veteran's surviving spouse.

Prior to his death, the Veteran filed the current claim on appeal in August 2011.  In November 2013, the appellant submitted a VA Form 21-601 (Application for Accrued Amounts Due to a Deceased Beneficiary).  A November 2014 rating decision denied the issue on appeal.  

While the Agency of Original Jurisdiction (AOJ) characterized the claim on appeal as one for accrued benefits, in substance it treated the appellant as a valid substitute and adjudicated the case based on substitution.  In this regard, the AOJ developed additional evidence.  

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 AOJ.  VA will notify the appellant if further action is required.


REMAND

With the appellant's September 2015 Notice of Disagreement, also submitted was a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).  This form appointed the Virginia Department of Veterans Services as the appellant's representative.  Upon review, this representative has not previously been recognized by VA as the appellant's representative, to include in the VA systems of VBMS and the electronic Veterans Appeals Control and Locator System (VACOLS); both previously noted no representative.  In addition, the representative was not copied on pertinent correspondence during the course of this appeal, to include the May 2016 Statement of the Case (SOC) and November 2016 Supplemental Statement of the Case (SSOC).  Further, the AOJ has a process outlined in the VA Adjudication Procedures Manual (M21-1) that that "gives an appellant's accredited representative an opportunity to review the appeal and submit a statement regarding the appeal" through a VA Form 646 (Statement of Accredited Representative in Appealed Case).  See M21-1, Part I, 5.F.2.  It is noted that VA "must provide an appellant's accredited representative the opportunity to review the appeal and submit VA Form 646 once all development for the pending appeal is complete, and prior to certification to" the Board.  See id.  This process was not completed in this case.  

Overall, the appellant's representative was not provided notice of, or the opportunity to meaningfully participate in, this appeal, which raises due process concerns.  The Board accordingly finds that the appropriate action is to remand this appeal to the AOJ so that the appellant's representative can be provided with copies of the May 2016 SOC and November 2016 SSOC.  The representative must then be afforded the opportunity to respond.   

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  Expedited handling is requested.)

1.  Provide the appellant's representative copies of the May 2016 SOC and November 2016 SSOC.
2.  Afford the appellant's representative an opportunity to respond before returning the case to the Board.  If necessary, furnish to the appellant and her representative a new SSOC.

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. §§ 5109B, 7112 (2012).



_________________________________________________
H. N. SCHWARTZ
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).