Citation Nr: 21027299 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-26 748 DATE: May 5, 2021 REMANDED Entitlement to recognition as the Veteran's surviving spouse, for purposes of establishing eligibility for dependency and indemnity compensation (DIC) benefits, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1972 to October 1978. The Veteran died in September 2011. This case comes to the Board of Veterans' Appeals (Board) from an August 2012 rating decision and accompanying administrative decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The decision found that the Veteran's cause of death was due to service-connected disabilities. In separate notification letters, E.J.P was informed that she was entitled to death benefits as the surviving spouse, and L.U.-P. was informed that she was not entitled to death benefits. L.U.-P. appealed this decision to the Board, and it is found to be a simultaneously contested claim by both L.U.-P. and E.J.P. In a June 2018 decision, the Board found that E.J.P.'s marriage to the Veteran was void, and L.U.-P. met the criteria for recognition as the Veteran's surviving spouse. E.J.P. appealed this decision to the Court of Appeals for Veterans Claims, which issued an April 2020 Memorandum Decision vacating the June 2018 Board decision. The Court discussed how simultaneously contested claims have "heightened procedural requirements to ensure that all interested parties receive a fair adjudicative process." See Sapp v. Wilkie, 32 Vet. App. 125, 138 (2019). It found that these heightened requirements had not been followed in this case. The Court stated that the AOJ had not informed E.J.P. of L.U.-P.'s September 2012 Notice of Disagreement, and had not sent her copies of the July 2014 Statement of the Case or July 2014 Form 9 Substantive Appeal. The Board had remanded this issue in March 2016 and December 2016 so that copies of the July 2014 Statement of the Case and Form 9 could be sent to E.J.P, but the Court noted that these remands themselves were not captioned as including E.J.P. as a claimant, and it did not appear that these remands had been sent to her either. The Court found that there was not adequate evidence that the remand instructions had been complied it, as the record shows only that E.J.P. was sent the July 2013 Statement of the Case and December 2017 Supplemental Statement of the Case. The Court found that E.J.P. had been unable to effectively advocate on her own behalf because she had not received notice of the contents of the evidence and arguments of L.U.-P., which affected the essential fairness of the adjudication. The Court also found that the Board failed to provide adequate reasons and bases for its findings by not addressing all of E.J.P.'s arguments. The Board therefore remands this case for compliance with the instructions of the April 2020 Memorandum Decision. Information regarding the contents of the September 2012 Notice of Disagreement and L.U.-P.'s subsequently submitted evidence and arguments, a copy of the July 2014 Form 9, copies of the March 2016 and December 2016 Board decisions, and additional copies of the July 2014 Statement of the Case and December 2017 Supplemental Statement of the Case should be sent to E.J.P. The Board notes that E.J.P has submitted several copies of the June 2018 Board decision and April 2020 Memorandum Decision to VA with response commentary, so it is clear that she has received copies of these decisions already. The Board also notes that the latest notification letters sent to L.U.-P. were returned as undeliverable. All efforts should be made to verify her correct address, and any documents that were returned, include the April 2020 Memorandum Decision and notification. L.U.-P. should also be provided a summary of the contents of E.J.P's arguments in this case. The Board also notes that going forward, ALL notification letters or substantive appeal documents must be provided to both claimants, and a record of this must be made and included in the electronic record. See 38 C.F.R. §§ 19.100-19.102. Lastly, the Board notes that E.J.P. has submitted additional legal documentation, and she has specifically requested that it be reviewed by the AOJ in the first instance prior to any Board adjudication. The matters are REMANDED for the following action: 1. Notify E.J.P. that she has the right to appoint a representative in this case and inform her of possible Veterans Service Organization options. 2. Provide E.J.P with the following documents, and any subsequently issued notification letters pertaining to this case, pursuant to 38 C.F.R. §§ 19.100-19.102: a) Information regarding the contents of the September 2012 Notice of Disagreement and all evidence and arguments submitted by L.U.-P. and her attorney; b) A copy of the July 2014 Form 9; c) Copies of the March 2016 and December 2016 Board decisions; d) And additional copies of the July 2014 Statement of the Case and December 2017 Supplemental Statement of the Case. 3. Verify the address of L.U.-P. and send her and her attorney any previously returned notification letters or decisions, including the April 2020 Memorandum Decision and notification letter. Also send of L.U.-P. a summary of E.J.P.'s evidence and argument submitted in this case. 4. After affording both claimants an appropriate period of time to respond, issue a Supplemental Statement of the Case addressing the contentions of both claimants and sending to a copy to both claimants and their representatives. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.