Citation Nr: 21008404
Decision Date: 02/16/21	Archive Date: 02/16/21

DOCKET NO. 13-21 251
DATE: February 16, 2021

REMANDED

Entitlement to an effective date earlier than April 1, 2013 for the grant of dependency and indemnity compensation (DIC) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1966 to September 1969.  He died on January 2010 and the appellant is the surviving spouse.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2020 the appellant appeared at a hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the transcript has been associated with the claims file and reviewed accordingly.

Procedurally, the appellant first notified the VA of the Veteran’s death in January 2010 and filed a formal claim in July 2010.  In an October 2010 rating decision, the cause of the Veteran’s death was established as were general entitlement to DIC benefits.  However, in an administrative decision later that same month, it was determined that the appellant did not meet the criteria for cohabitation with the Veteran at the time of his death and was, thus, found to not meet the definition of “spouse” for VA purposes.  Thereafter, the appellant filed a notice of disagreement (NOD) with this finding in November 2010.  A statement of the case (SOC) was later provided in May 2013, which continued to deny entitlement to DIC.  The appellant then filed a VA Form 9 (Substantive Appeal) in July 2013 and, thus, served the basis for the current appeal before the Board.

It is noted, however, that prior to the issuance of the May 2013 SOC, the RO provided an administrative decision in April 2013, which granted entitlement to DIC to the appellant effective April 1, 2013 as well a retroactive one-time month of death benefit for January 2010, resolving the earlier appealed issue of “spouse.”  Therefore, it appears that the continuation of the appellant’s appeal by the May 2013 SOC was in error, as the original issue on appeal (entitlement to DIC) had been granted in full.  

It is noted, though, that the appellant’s July 2013 substantive appeal appears to have actually been a NOD to the April 2013 administrative decision, as she specifically indicated that she was challenging the April 1, 2013 effective date and arguing for an earlier finding back to 2010.  Additionally, this correspondence was received within one year of the April 2013 decision.  In this regard, it is noted that a review of the claims file does not show that the appellant has been provided with a SOC for this issue of an earlier effective date, nor has it been adjudicated by the RO.

An unprocessed NOD shall be remanded, not referred, to the RO for issuance of an SOC.  Manlincoln v. West, 12 Vet. App. 238, 240-241.  Thus, as this claim is not currently ripe for adjudication to the Board, it is remanded for the issuance of a SOC addressing the claim for an earlier effective date.

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The matters are REMANDED for the following action:

The RO should issue the appellant a SOC for the issue of entitlement to an effective date earlier than April 1, 2013 for the grant of DIC, which was awarded in an April 2013 rating decision and appealed in a July 2013 NOD.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Dodd, Ryan

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.