Citation Nr: A21020435 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 201109-186961 DATE: December 22, 2021 REMANDED Entitlement to an increased rate of Department of Veterans Affairs (VA) pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to October 1965. Unfortunately, he died in June 2020. The appellant is the Veteran's brother, who was properly recognized as substitute claimant in an August 2020 decision by a Department of Veterans Affairs (VA) Regional Office (RO), based on a finding that the appellant bore the expenses of the Veteran's last sickness or burial. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2020 decision of a VA RO. Entitlement to an increased rate of VA pension benefits. The appellant contends that the Veteran was entitled to a higher rate of VA pension benefits. Specifically, he stated in the letter attached to his notice of disagreement (VA Form 10182) that he was seeking reimbursement for the funds he paid to support the Veteran each month for the two years prior to the Veteran's death. VA laws and regulations provide for an increased rate of pension, in the form of a SMP, when an eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total, and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. See 38 U.S.C. § 152(d), (e); see also 38 C.F.R. § 3.351(b), (c), (d). The maximum rate for improved pension shall be reduced by the amount of the countable annual income of the veteran. See 38 U.S.C. § 1521; 38 C.F.R. § 3.23(b). By way of background, in a June 2019 decision letter, the Veteran was afforded special monthly pension (SMP) with aid and attendance in the amount of $140.05 per month, effective December 3, 2018. In January 2020, the appellant, acting on the Veteran's behalf as his duly appointed fiduciary for VA purposes, submitted VA Form 21-0966, Intent to File a Claim. In March 2020 and June 2020, the appellant, in his role as the Veteran's fiduciary, filed VA Form 21-527EZ, Fully Developed Claim (Pension). Subsequently, in June 2020, the Veteran died. In July 2020, the appellant simultaneously filed VA Form 21-601, Application for Reimbursement from Accrued Amounts Due to a Deceased Beneficiary, and VA 21-0847, Request for Substitution of Claimant Upon Death of Claimant. Per VA policy, a standard application is not required for a request to substitute, and that a claim for accrued benefits is deemed to include a request to substitute when it is submitted by an individual in the categories of eligible persons as described in 38 C.F.R. § 3.1000(a). In an August 2020 decision, the RO properly recognized the appellant as substitute claimant, based on a finding that the appellant bore the expenses of the Veteran's last sickness or burial. In the September 2020 rating decision on appeal, the RO confirmed and continued entitlement to SMP with aid and attendances for accrued purposes. However, it is not clear from the record that the appellant had adequate notice of the evidence necessary to support the claim for an increased rate of pension benefits. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Notably, the June 2020 development letter was sent a mere three days after the date of the Veteran's death to the appellant in his role as the Veteran's fiduciary for VA purposes. The Board finds that this is insufficient to satisfy VA's duties to notify and assist the appellant in his current role as substitute claimant. Therefore, remand is necessary to provide adequate notice to the appellant of the evidence necessary to substantiate the present claim. The matters are REMANDED for the following action: Provide the appellant with notice of what information is necessary to substantiate the claim and not of record, to include the information contained in the June 2020 development letter, as well as any information that VA will seek to provide and that the claimant is expected to provide. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.