Citation Nr: 20022428
Decision Date: 03/31/20	Archive Date: 03/31/20

DOCKET NO. 16-05 664A
DATE: March 31, 2020

REMANDED

Entitlement to a non-service connected pension with aid and attendance benefits is remanded.

REASONS FOR REMAND

The Veteran served honorably in the United States Air Force from December 1942 to January 1944 and from October 1950 to December 1951.  The Veteran died in July 2014.  The Appellant is the Veteran’s son. 

1. Entitlement to non-service connected pension with aid and attendance benefits.

The Veteran’s Application for Pension benefits was received in May 2014 and denied in June 2014.  He was notified that he had one year from the date of the denial to appeal the decision; however, he died on July [REDACTED], 2014, approximately 14 days later. 

The Veteran had not filed a Notice of Disagreement prior to his death. Nevertheless, as the one year period had not yet elapsed at the time of his death, his claim is considered pending.  38 C.F.R. § 3.1010 (g)(1)(i)(2019).

The Board remanded this issue in January 2019 to allow the Appellant the opportunity to be substituted for the Veteran.  In June 2019, the Appellant was properly substituted as the claimant.  As such, 38 U.S.C. § 5121A (2012) and 38 C.F.R. § 3.1010 (2019) are applicable and the Appellant’s claim is not one for accrued benefits but remains the Veteran’s original claim. 

The Board remanded this issue again in August 2019, finding that, although the Agency of Original Jurisdiction (AOJ) properly substituted the Appellant, it incorrectly readjudicated the claim using the accrued benefits standard instead of the substituted claimant standard in a July 2019 Supplemental Statement of the Case (SSOC).  

The Board finds that there has not been substantial compliance with its August 2019 remand directive, as the AOJ still incorrectly adjudicated the claim using the accrued benefits standard in a January 2020 SSOC.  As such, the Board must remand this matter to allow initial consideration of the Appellant’s claim under the correct standard, i.e. as a substituted claimant.  See Stegall v. West, 11 Vet. App. 268 (1998).

The matter is REMANDED for the following action:

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1. Contact the appellant and his representative and, with his assistance, identify any outstanding pertinent records and associate them with the claims file.

2. After the above has been completed to the extent possible, then readjudicate the appellant’s claims on the basis of a substitute claimant.  If any benefit sought is not granted, the appellant and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J.T. Massey, 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.