Citation Nr: 20003310 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-16 664 DATE: January 14, 2020 REMANDED Entitlement to accrued benefits, to include reimbursement of last sickness and burial expenses, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to VA burial benefits is remanded. REASONS FOR REMAND The Veteran had active service from September 1955 to November 1957. He passed away in August 2015. The appellant is his niece. Within one year of the Veteran’s death, the appellant filed several claims for VA benefits, to include for accrued benefits, burial benefits, and entitlement to service connection for the cause of the Veteran’s death. In a July 11, 2016 rating decision, the agency of original jurisdiction denied the appellant’s cause of death claim. In a July 14, 2016 notice letter, the AOJ informed the appellant that her claim for accrued benefits was also denied. In a July 20, 2016 letter, the AOJ denied the appellant’s claim for burial benefits. In August 2016, the appellant filed a VA Form 21-0958 (Notice of Disagreement) with the AOJ’s July 2016 adjudications. She specifically referenced the AOJ’s denial of accrued benefits, but also provided contentions relevant to the claims for service-connected death and burial benefits. The AOJ has not sent the appellant a Statement of the Case (SOC) addressing her cause of death claim, or her burial benefits claim. the United States Court of Appeals for Veterans Claims has held that the filing of a notice of disagreement initiates the appeal process, and that the failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. §§ 19.26, 19.30. With respect to accrued benefits, upon the death of a surviving spouse, accrued benefits are payable only to the veteran’s children. In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a); 38 C.F.R. §§ 3.1000(a)(2), (5) (excluding other provisions not applicable here). Thus, the key question at issue in this case is whether any accrued benefits can be paid to the appellant to reimburse her for such expenses. In January 2017, a SOC was issued denying the appellant’s entitlement to accrued benefits. One of the reasons noted for denial was that the evidence failed to show that the appellant paid any last expenses, and she was therefore not recognized as the substitute claimant. Subsequent to the issuance of the January 23, 2017 SOC, but prior to submission of a February 2017 substantive appeal (VA Form 9) or certification of the appeal to the Board, the appellant provided receipts she states demonstrate expenses she incurred for the funeral and burial of the Veteran, among other expenses. See January 30, 2017 Correspondence. The AOJ did not review the evidence before accepting the appellant’s VA Form 9 and certifying the case to the Board. The appellant has not otherwise waived initial review of such evidence by the AOJ, and such initial review is not presumed to be waived, as the evidence was submitted to the AOJ prior to submission of the appellant’s February 2016 VA Form 9. On remand, the AOJ should review the submitted receipts to determine if the appellant has standing as a claimant for accrued benefits. Accordingly, the matters are REMANDED for the following action: 1. Review the receipts and reports submitted by the appellant in January 2017. If the appellant demonstrates that she is a proper claimant for accrued benefits under 38 C.F.R. § 3.1000(a)(5), review the claims file and adjudicate, after conducting any additional development warranted by the new evidence, the appellant’s claim for accrued benefits. If the benefits sought on appeal remain denied, the appellant should be furnished a Supplemental Statement of the Case and given the opportunity to respond. 2. Provide the appellant with a statement of the case regarding entitlement to service connection for the cause of the Veteran’s death, and entitlement to VA burial benefits. Inform the appellant of her appeal options, should her claims remain denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.