Citation Nr: A21019901
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 211101-194747
DATE: December 14, 2021

REMANDED

Entitlement to survivor's pension, for purposes of accrued benefits, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1948 to September 1953.  The Veteran died in June 1996.  The Veteran's surviving spouse sought benefits following the Veteran's death.  The Veteran's surviving spouse died in May 2020.  The current appellant is the adult son of the Veteran and his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) pursuant to the Appeals Modernization Act, on appeal from an April 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  In June 2021, the appellant filed a timely Form 10182 Notice of Disagreement, electing the direct docket.  Since the appellant chose the Direct Review docket, they received notice that they opted to submit no new evidence. 

Entitlement to a survivor's pension, for purposes of accrued benefits, is remanded.

The RO's failure to provide proper notice to the Veteran's surviving spouse constitutes a pre-decisional duty to assist error and remand for correction is warranted. 

In August 2018, the Veteran's surviving spouse filed claims seeking DIC benefits, special monthly pension, aid and attendance benefits, and a survivor's pension.  While the Regional Office (RO) granted aid and attendance benefits, the surviving spouse's claim for a survivor's pension was not adjudicated, as the RO requested more information.  In January 2019, the RO denied the survivor's pension claim, noting that the requested information was not submitted. 

However, it appears that the Veteran's surviving spouse did not receive the information request from the RO as it was returned to the RO due to being sent to the wrong address.  Several more documents were returned to the RO as well, including the January 2019 denial of the survivor's pension claim.  The Veteran's surviving spouse submitted documents in August and December 2019 and the RO informed her in February 2020 that she needed to submit her claim on the proper form.

As it stands, the Board determines that the Veteran's surviving spouse's original claim for a survivor's pension remains open, as she was not properly informed by the RO that more information was needed for her claim.  The RO needed to ensure that she was receiving notice of the status of her claim, which she was not properly informed of either. 

To avoid any prejudice to the appellant, the RO should adjudicate the nonservice-connected death pension benefit claim for the surviving spouse that was pending at the time of her death. See Sprinkle v. Shinseki, 733 F.3d 1180, 118384 (Fed. Cir. 2013) (noting that veterans' claims are initially developed and adjudicated by the RO and reviewed on appeal by the Board, and that, "[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance").

The RO should determine if there were any benefits, including those that are retroactive, that the Veteran's surviving spouse was entitled to at her death.  Additionally, the RO needs to determine if the appellant is a proper substitute for that claim.  

The matters are REMANDED for the following action:

The RO should adjudicate the pending claim for survivor's pension. 

In so doing, the RO should determine if the appellant may properly substitute for the purposes of this claim.  The RO should provide notice of any necessary documentation to the appellant. 

 

 

ZAHEER MASKATIA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Q. Hernan, Attorney Advisor