Citation Nr: A21016746
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 210825-181963
DATE: October 14, 2021

REMANDED

Entitlement to an effective date prior to December 1, 2020, for the grant of Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death is remanded.

REASONS FOR REMAND

The Veteran had honorable active duty service from January 1967 to January 1969, to include service in the Republic of Vietnam.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law, which went into effect on February 19, 2019, creates a new framework for claimant's dissatisfied with VA's decision on their claim to seek review.

The Board notes that a March 2021 rating decision granted DIC benefits based on service connection for the cause of the Veteran's death and assigned an effective date of December 1, 2020.  In March 2021, the appellant requested reconsideration of the effective date assigned in that decision and requested the Supplemental Claim option for review.  The AOJ denied the appellant's claim in a May 2021 decision. In July 2021, the appellant requested the Supplemental Claim option for review of the May 2021 decision. Thereafter, the AOJ denied the appellant's claim in a July 2021 decision that is the subject of this appeal. In August 2021, the appellant timely appealed the July 2021 decision to the Board and requested direct review of the evidence considered by the agency of original jurisdiction (AOJ).  

1. Entitlement to an effective date prior to December 1, 2020, for DIC benefits based on service connection for the cause of the Veteran's death

The Board finds that a remand is required to correct a duty to assist error that occurred prior to the AOJ decision on appeal. The Veteran passed away on September 8, 2019.  The appellant, who is the Veteran's surviving spouse, filed a VA application for DIC benefits that was received on November 19, 2020.  The appellant seeks an effective date prior to December 1, 2020, for the grant of DIC benefits based on service connection for the cause of the Veteran's death. She contends, in essence, that she was granted the Veteran's Social Security Administration (SSA) benefits after his death and these records should be considered a claim for DIC benefits under 38 C.F.R. § 3.153; therefore, the effective date for DIC benefits based on service connection for the cause of the Veteran's death should be the date of the SSA application.  While the record indicates that SSA records were previously requested by the AOJ and SSA inquiry results are associated with the claims file, these records do not show whether the appellant applied for SSA death benefits after the Veteran's passing and/or receives death benefits. In July 2021, prior to the decision on appeal, the appellant returned to VA a completed SSA Form 3288, Consent for Release of Information. Thus, remand for correction of the duty to assist error is needed.

 

This matter is REMANDED for the following action:

Request from the Social Security Administration records relevant to the Appellant's application for death benefits with that agency. 

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. C. Birder

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.