Citation Nr: 21015584 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-20 499 DATE: March 17, 2021 REMANDED Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1943 to February 1946. The appellant is the son of the deceased Veteran and his surviving spouse, who is now also deceased. The Veteran died in September 2008 and at the time of his death, he had no pending claims and had not been service connected for any disabilities. The Veteran’s surviving spouse died in November 2014 and at the time of her death, she had not filed a claim to be substituted for any benefits that the Veteran may have been entitled to. The record reflects that on January 27, 2015, the appellant filed an informal claim for reimbursement for his mother’s medical expenses (Medical Expense Report detailing the caregiver expenses for his deceased mother) and his father’s (Veteran) burial expenses, which the RO recharacterized as a claim for accrued benefits. The RO denied the Veteran’s claim in February 2015, stating that an accrued benefit is any money owed a Veteran or spouse of a Veteran at the time of death, and that at the time of the Veteran’s death and subsequently his surviving spouse’s death, no money was owed to them by the VA. Furthermore, the RO also denied the appellant’s claim for reimbursement for the Veteran’s burial expenses on the basis that the appellant’s claim was received more than two years after the deceased Veteran’s permanent burial or cremation. This matter was previously before the Board in December 2018, when the Board dismissed the appellant’s appeal, as a matter of law, citing that at no time during their lives, did the Veteran or his surviving spouse submit a claim for VA benefits, and that the appellant’s power of attorney (POA) does not give him legal standing to file a stand-alone claim for reimbursement for his mother’s medical care, after her death. 38 U.S.C. § 5121. The Board further noted that the record does not reflect any prior telephonic communication from the appellant regarding an intent to file a claim on his mother’s behalf in August 2014, while she was alive, which was a significant issue of contention by the appellant. Following the Board’s denial of the Veteran’s claim, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, in a July 2020 Memorandum Decision, the Board's decision was vacated, and the matter was remanded for further proceedings consistent with the Court’s decision. The Memorandum Decision states that the Board’s December 2018 decision provided an inadequate statement of reasons or bases for the following: 1) determining that January 2015 is the first indication of an informal claim; 2) that the August 2014 email does not identify any specific benefit sought; and 3) that the record does not reflect any prior telephonic communication indicating an intent to file a claim (which under old regulation was an acceptable way to file a claim) as the Veteran contends. With regards to the August 11, 2014, email, the Court cited that the Board stated that the email "only reflects VA sending the appellant factsheets and blank forms," but that the Board did not discuss whether the specific forms attached to the email, coupled with the appellant's lay testimony and VA's established practice (to send the claimant the appropriate application forms for the benefit sought, following a telephonic communication) reflects that the appellant identified the benefits sought. 1. Entitlement to accrued benefits is remanded. The pertinent question is whether to accept (without any documentary evidence of record) that there was a prior telephonic communication between the appellant and a VA representative on August 11, 2014, during which the appellant expressed his intent to file a claim on behalf of his mother, prior to his mother’s death. The documentary evidence of record reflects that an informal claim was filed on January 27, 2015, which was after the appellant’s mother’s death. Based on the Court’s Memorandum Decision, particularly with regard to the August 11, 2014, email sent by VA to the appellant with specific identifying forms attached (which the appellant is asserting was in response to his August 11, 2014 telephonic communication indicating his intent to file a claim on behalf of his mother prior to her death), as this is now the law of the case (Forcier v. Nicholson, 19 Vet. App. 414 (2006)), the Board finds that the merits of the appellant’s accrued benefits claim, to include the issue of whether the appellant’s claim may be deemed filed prior to the surviving spouse’s death, must be adjudicated in the first instance by the agency of jurisdiction. Claims for veterans' benefits are initially developed and adjudicated by a VA Regional Office." Sprinkle v. Shinseki, 733 F.3d 1180, 1183-84 (Fed. Cir. 2013) (citing 38 U.S.C. § 7105 (b)(1), (d)(1)). "Decisions of the Regional Office are then reviewed on appeal by the Board." Id. at 1184 (citing 38 U.S.C. § 7104 (a)). "To 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." Id. (citing 38 U.S.C. § 7104 (a)). Consequently, the Board finds that this matter must be remanded for the RO to develop and adjudicate the merits of the appellant’s claim, and then specifically to determine whether the appellant’s claim may be deemed filed prior to the surviving spouse’s death, whether there were any accrued benefits payable to the Veteran’s surviving spouse prior to her death, and if the appellant is an eligible claimant for the purposes of substitution or accrued benefits. The matters are REMANDED for the following action: Based on the Court’s July 2020 Memorandum Decision, the Agency of Jurisdiction (AOJ) should develop and adjudicate the merits of the appellant’s claim, specifically to then determine whether the appellant’s claim may be deemed filed prior to the surviving spouse’s death, whether there were any accrued benefits payable to the Veteran’s surviving spouse prior to her death, and if the appellant is an eligible claimant for the purposes of substitution or accrued benefits, including for reimbursement for the expense of the last sickness or burial pursuant to 38 C.F.R. § 3.1000. Such decision should be associated by memorandum to the claims file and the appellant should be provided with all appropriate due process rights and notification of such decision. After conducting any other development deemed necessary, readjudicate the appellant's claim. If the remains denied, issue a Supplemental Statement of the Claim (SSOC) and give the appellant an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, Associate 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.