Citation Nr: 21021958
Decision Date: 04/14/21	Archive Date: 04/14/21

DOCKET NO. 12-29 274
DATE: April 14, 2021

REMANDED

Entitlement to restoration of dependency and indemnity compensation (DIC) benefits is remanded.

REASONS FOR REMAND

The Veteran had active duty service in the Philippine Commonwealth Army from December 1941 to October 1944.  He died in October 1944.  The Appellant claims to be his surviving spouse for VA DIC benefits purposes.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In a February 2014 decision, the Board denied the claim of entitlement to restoration of DIC benefits.  The Appellant appealed the denial to the Court of Appeals for Veterans Claims (Court).  In May 2015, the Court issued a Memorandum Decision that set aside the February 2014 decision and remanded the claim.  In March 2016 and June 2020, the Board remanded the claim for additional development consistent with the May 2015 Memorandum Decision. 

1. Entitlement to restoration of DIC benefits is remanded.

Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by VA, and waiver of such review may not be presumed.  38 C.F.R. § 20.1305.  Here, additional evidence has been added to the file since the December 2020 Supplemental Statement of the Case (SSOC).  Notably, letters from the Philippine Statistics Authority and Office of the Judge Advocate General (JAG) were added to the record that relate to the claim.  

The Appellant has not submitted a waiver of AOJ consideration for the new evidence.  An attempt to obtain a waiver was sent in February 2021, but the applicable time period has lapsed without a response.  Therefore, the AOJ must be given an opportunity to consider this evidence and properly adjudicate the claim in the first instance. 38 C.F.R. §§ 19.31, 19.37.

The matter is REMANDED for the following action:

1. Readjudicate the claim based on the entirety of the evidence.  If the benefit sought on appeal is not granted, the Appellant should be provided a SSOC and afforded the requisite opportunity to respond before the case is returned to the Board.  The SSOC should consider any new evidence received since the last SSOC.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Amanda Baker, 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.