Citation Nr: 21022714 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-01 640 DATE: April 19, 2021 ORDER TO VACATE The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904(a). In this instance, in an April 17, 2020, Board decision, the Board granted recognition of J.S. as the Veteran’s legal surviving spouse for purposes of entitlement to VA death benefits. However, the Board notes this is a “contested claim” and is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504, 20.713. Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties will be furnished with a Statement of the Case (SOC). 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. 38 C.F.R. § 20.713. A close review of the claims file reveals that VA did not fulfill its obligations under the procedures relating to contested claims prior to the April 17, 2020, Board decision. Specifically, VA did not provide D.S. with the contents of the appellant’s December 2018 or March 2019 substantive appeal. Additionally, notice of the January 2020 Board hearing was not sent to D.S. or her representative (The American Legion), nor was a transcript of the hearing provided to D.S. along with an opportunity to respond or request her own hearing. Thus, the Board’s recognition of J.S. as the Veteran’s legal surviving spouse for purposes of entitlement to VA death benefits was not proper because it denied D.S. due process of law by not complying with the contested claims procedures outlined in 38C.F.R. §§19.100-02, 20.500-04, 20.713. The Board's April 17, 2020, decision will be vacated in its entirety and a new decision will be entered as if the April 2020 decision had never been issued. REMANDED Recognition of J.S. as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to February 1967 and from April 1967 to October 1970, including service in the Republic of Vietnam during his first period of service. The Veteran died in August 2015. The appellant in this case is the Veteran’s first spouse, J.S., and the contesting claimant is D.S. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2018 decision. In January 2020, J.S. and her son, S.S., testified at a Board videoconference hearing; a transcript of the hearing is associated with the claims file. 1. Recognition of J.S. as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to ensure that the procedural requirements applicable to simultaneously contested claims are satisfied. A claim is contested when a favorable decision in one claim results in the denial of another claim for the same benefit, or the allowance of one claim results in the payment of a lesser benefit to another claimant. 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(l). The situation in this case presents simultaneously contested claims, with J.S. and D.S. seeking dependency and indemnity (DIC) benefits as a surviving spouse. The claims by their nature limit or prohibit each other. There are special procedural protections in contested claims to ensure that there are no due process violations and that these claims are developed and adjudicated in a timely manner. 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504, 20.713 (outlining procedural requirements). Notably, Under applicable criteria, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a notice of disagreement (NOD) in a simultaneously contested claim, all interested parties will be furnished with a Statement of the Case (SOC). 38 C.F.R. § 19.101. When a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information that could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. 38 C.F.R. § 20.713. VA claimants are entitled to the procedural requirements that ensure a claimant’s right to full and fair assistance and adjudication of their claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). This includes ensuring that claimants are afforded the opportunity to respond to the arguments of other parties in a simultaneously contested claim. Sapp v. Wilkie, 32 Vet. App. 125 (2019). In this appeal, the AOJ did not satisfy its obligations under the heightened procedural requirements for contested claims as the claims file does not indicate D.S. was provided with the contents of the appellant’s December 2018 or March 2019 substantive appeal. Additionally, notice of the January 2020 Board hearing was not sent to D.S. or her representative (The American Legion), nor was a transcript of the hearing provided to D.S. along with an opportunity to respond or request her own hearing. As such, D.S. was deprived of her right to meaningful participation in the adjudication of the claim. Therefore, a remand is necessary to ensure that the claims are developed and adjudicated in conformance with applicable procedural safeguards. See id. The matters are REMANDED for the following action: 1. Ensure full compliance with the contested claims procedures outlined in 38C.F.R. §§19.100-02, 20.500-04. Specifically, ensure D.S. and her representative are provided with the contents of the appellant’s December 2018 and March 2019 substantive appeal and the January 2020 Board hearing transcript. D.S. and her representative must be afforded an opportunity to respond with additional evidence or argument. She must also be asked specifically whether she would like to have a personal hearing regarding this appeal. If D.S. elects to appear before the Board and/or submit written rebuttal to the appellant’s contentions, the appellant must be notified of any hearing scheduled (and given an opportunity appear) and/or be provided a copy of any written rebuttal submitted by D.S. (and given an opportunity to respond). Copies of all supplemental statements of the case (SSOCs) must be sent to both parties and their respective representatives.   2. Readjudicate the claim on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.