Citation Nr: 21024909 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-37 660 DATE: April 26, 2021 ORDER The appellant's claim for accrued benefits was timely filed, and the appeal, to this extent only, is granted. REMANDED Entitlement to accrued benefits is remanded. Service connection for the Veteran’s cause of death is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from March 1984 to April 1988. The Veteran died in January 2013. The Appellant is the Veteran’s daughter. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board denied the Appellant’s claim for accrued benefits. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a November 2020 Order, vacated the Board’s December 2019decision and remanded the matter to the Board. FINDINGS OF FACT 1. The Veteran died in January 2013. 2. The Appellant was not provided an appropriate application form for Dependency and Indemnity compensation (DIC) following the Veteran’s death until March 2015. 3. In March 2016, the Appellant submitted an Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. CONCLUSION OF LAW The Appellant's claim for accrued benefits was timely filed. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.150, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. Upon the death of a payee, any accrued benefits are payable to his or her surviving spouse, or to specific others if there is no surviving spouse. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000 (a)(1). In this case, the Appellant is the Veteran's daughter. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). A specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.152(a). Upon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or DIC. If it is not indicated that any person would be entitled to such benefits, but there is payable an accrued benefit not paid during the veteran's lifetime, the appropriate application form will be forwarded to the preferred dependent. Notice of the time limit will be included in letters forwarding applications for benefits. 38 C.F.R. § 3.150(b). Here, the Veteran died in January 2013. At the time of his death, he had pending, unadjudicated claims for service connection for multiple myeloma and hearing loss; service connection for myelodysplastic syndrome (MDS) and acute myeloid leukemia as secondary to multiple myeloma; and an increased rating for degenerative disc disease and degenerative joint disease, C-5 and C-7, with residual decreased sensation on the right upper extremity. See VA Form 21-526, received on June 27, 2012; VA Form 21-4138, received on November 26, 2012; and Deferred Rating Decision, dated November 27, 2012. In March 2015, the Appellant contacted the RO and expressed her intent to submit a claim for Surviving Child benefits. See VA Form 21-4138, received on March 18, 2015. In a letter dated March 26, 2015, the RO notified the Appellant that it had received her correspondence about VA death benefits on March 18, 2015 and provided her with a VA Form 21-534EZ, Application for Dependency Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child. The Appellant submitted her Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child in on March 4, 2016, which was more than one year after the date of the Veteran’s death. Applications for accrued benefits must be filed within one year after the date of death. See 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000(c). However, the Board finds the Appellant did not receive adequate notice of her rights as a dependent at the time of the Veteran’s death. See 38 C.F.R. § 3.150(b) (providing that “[u]pone receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or dependence and indemnity compensation.”). In January 2013, following the Veteran’s death, the RO contacted his estate with information about VA benefits; however, even though the Veteran had previously indicated that he had never married and that the Appellant was his dependent child who did not reside with him and provided her address, the record does not reflect the RO contacted the Appellant separately. See VA Form 21-526, dated June 25, 2012, and VA Form 21-686c, dated June 22, 2012. Regarding this, a June 2012 VA Form 21-686c – Declaration of Status of Dependents shows the Veteran indicated the Appellant was a dependent child who did not reside with him, and he provided her address, as well as a copy of her birth certificate showing her date of birth as January [REDACTED], 1997. At the time of the Veteran’s death in January 2013, the Appellant was 15 years old. See 38 C.F.R. § 3.57. Therefore, since the evidence of record demonstrates the Veteran’s child had apparent entitlement to certain death benefits, i.e., the Veteran had pending, unadjudicated claims at the time of his death, the Board finds that under 38 C.F.R. § 3.150, VA had an affirmative duty to furnish an application form for DIC benefits to the Appellant. There is, however, no evidence in the record suggesting that VA forwarded the appropriate application or any other correspondence to the Appellant after receiving notice of the Veteran’s death. Accordingly, the Board accepts the March 2016 VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child as timely. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.150, 3.1000. REASONS FOR REMAND 1. Entitlement to accrued benefits is remanded. With respect to the underlying claim for accrued benefits, a remand is required to allow the AOJ to adjudicate the claim, in order to avoid prejudice to the Appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sprinkle v. Shinseki, 733 F.3d 1180, 118384 (Fed. Cir. 2013) (noting that veterans' claims are initially developed and adjudicated by the RO and reviewed on appeal by the Board, and that, "[t]o 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"). 2. Service connection for the Veteran’s cause of death is remanded. The Board finds the claim for service connection for the Veteran’s cause of death is inextricably intertwined with the outcome of the claim for accrued benefits. As such, appellate action on the claim for service connection for the Veteran’s cause of death must be deferred pending RO adjudication of the Appellant’s claim for accrued benefits. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: Adjudicate the Appellant’s claim for accrued benefits. As noted above, at the time of the Veteran’s death he had pending, unadjudicated claims for service connection for multiple myeloma; service connection for hearing loss; service connection for myelodysplastic syndrome (MDS) and acute myeloid leukemia as secondary to multiple myeloma; and an increased rating for degenerative disc disease and degenerative joint disease, C-5 and C-7, with residual decreased sensation on the right upper extremity. See VA Form 21-526, received on June 27, 2012; VA Form 21-4138, received on November 26, 2012; and Deferred Rating Decision, dated November 27, 2012. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.