Citation Nr: A21016596
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 210807-177980
DATE: October 12, 2021

REMANDED

Entitlement to survivors' pension benefits is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from December 1944 to May 1946.  Unfortunately, he died in December 2010.  The appellant is his surviving spouse. 

The original determination underlying the present appeal was issued in October 2020 by a Department of Veterans Affairs (VA) Regional Office (RO).  The RO denied the appellant's claim for survivors' pension benefits.  Later that same month, the appellant filed a VA Form 20-0995 (Decision Review Request: Supplemental Claim), which was denied in November 2020.  Following a denial on Higher-Level Review in June 2021, the appellant timely appealed to the Board, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ) pursuant to the Appeals Modernization Act (AMA).  See August 2021 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1). 

Entitlement to survivors' pension benefits is remanded.

VA received the appellant's intent to file a claim for survivors' pension benefits in August 2020.  The appellant then submitted a VA Form 21-534EZ in September 2020.  The AOJ denied the claim on the basis that the appellant's net worth was excessive for the purpose of establishing entitlement to payment of survivors' pension benefits.  In this regard, the AOJ included in the appellant's net worth the proceeds of the sale of a home that occurred in June 2019 ($100,344).  However, in doing so, the AOJ did not make an explicit finding, or provide support for an implicit finding, that the home was a "covered asset" pursuant to 38 C.F.R. § 3.276(a)(3) so as to warrant application of the look-back provisions under 38 C.F.R. § 3.276(a)(7).  Specifically, the AOJ did not make an explicit finding, or provide support for an implicit finding, that the home was sold for less than fair market value.  See 38 C.F.R. § 3.276(a)(3)-(6).  

The Board finds that the above-referenced failure constitutes a pre-decisional due process error in satisfying the AOJ's regulatory duty to make the requisite findings pursuant to 38 C.F.R. § 3.276.  See 38 C.F.R. § 20.802(a).  A remand is necessary in order correct this pre-decisional due process error.

This matter is REMANDED for the following action:

Readjudicate the appellant's claim for survivors' pension benefits, making an explicit determination as to whether the appellant's home, which was sold in June 2019, is a "covered asset" pursuant to  

38 C.F.R. § 3.276.  In doing so, cite the evidence used to support that conclusion.

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Ragheb, 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.