Citation Nr: 21008148 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-05 749 DATE: February 11, 2021 REMANDED Entitlement to service connection for a psychiatric disability for accrued benefits purposes is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1977. The Veteran died in September 2012. The Appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant testified before the undersigned Veterans Law Judge at a hearing in April 2019. A transcript of the hearing is of record. In October 2019 and September 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for a psychiatric disability for accrued benefits purposes is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to service connection for a psychiatric disability for accrued benefits purposes. In October 2019, the Board found that with regard to the claim for service connection for depression, the opinion obtained by the last VA examination was incomplete, and remand was required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. On remand, the Agency of Original Jurisdiction (AOJ) obtained a VA medical opinion in January 2020 and subsequently returned the case to the Board. In a June 2020 post-remand brief, the accredited representative noted that no supplemental statement of the case had been issued regarding the issue of whether new and material evidence has been presented to reopen a claim of entitlement to accrued benefits at the time of death for service connection for depression as secondary to the service-connected disability of bilateral sensorineural impairment and tinnitus. The representative stated that remand is necessary in order to issue a supplemental statement of the case regarding that issue. Subsequently, in February 2020, the AOJ issued a supplemental statement of the case. In September 2020, the Board found the February 2020 supplemental statement of the case to be inadequate as it only addressed the single issue of entitlement to service connection for the cause of the Veteran’s death. To provide the Appellant proper due process, the Board again remanded this case to the AOJ to issue a supplemental statement of the case that addressed the issues of whether new and material evidence has been presented to reopen a claim of entitlement to accrued benefits at the time of death for service connection depression as secondary to the service-connected disability of bilateral sensorineural impairment and tinnitus, and entitlement to service connection for the cause of the Veteran’s death. Subsequently, in its September 2020 supplemental statement of the case, regarding the entitlement to accrued benefits claim, the AOJ stated that in order for the office of original jurisdiction to make a determination, the claim must have been finally adjudicated. The claim in question was appealed within the appeal period and has remained in appeal status. As a result, a determination as to whether new and material evidence has been submitted to reopen a claim could not be made at that time since a final decision had not been made based on Appellate review. The Board agrees. After review of the claims file, it appears that the claim surrounding service connection for a psychiatric disability for accrued benefits purposes was properly appealed and has remained in Appellate status with no final decision being rendered to date. The Board notes that while the Appellant did not file a VA Form 9, Appeal to Board of Veterans’ Appeal, within 60 days of the issuance of the original statement of the case, the Appellant was granted an extension to file a Form 9. VA accepted the Appeal to the Board of Veteran’s Appeals as timely on February 27, 2014. However, to date, the AOJ has not provide the Appellant proper due process, as a supplemental statement of the case has not been issued that addresses the issues of entitlement to accrued benefits at the time of death for service connection depression as secondary to the service-connected disability of bilateral sensorineural impairment and tinnitus, and entitlement to service connection for the cause of the Veteran’s death. The Board notes that the Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, remand is required for the AOJ to issue a supplemental statement of the case that addresses both claims. 38 C.F.R. §19.31. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. The Board notes that the Appellant’s claim for accrued benefits has been remanded. As the claim for accrued benefits could affect the claim for service connection for the cause of the Veteran’s death, the Board finds that the claims are inextricably intertwined. Therefore, remand is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Readjudicate the pending claims of entitlement service connection for a psychiatric disability, to include as secondary to service-connected bilateral hearing loss and tinnitus, for accrued benefits purposes; and entitlement to service connection for the cause of the Veteran’s death. Specifically consider all evidence added to the appeal subsequent to the issuance of the February 2014 supplemental statement of the case. If any decision is adverse to the Appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.