Citation Nr: 21028989
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 14-39 266
DATE: May 12, 2021

REMANDED

Entitlement to recognition of the appellant (L. S.) as the Veteran's surviving spouse for Department of Veterans Affairs (VA) benefits purposes is remanded.

Entitlement to Dependency and Indemnity compensation (DIC), death pension, and accrued benefits is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1970 to November 1971.  He died in March 2014.  The appellant asserts that she is the Veteran's surviving spouse.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating determination, which denied the appellant's claim for DIC, death pension, and accrued benefits on the basis that she was not the Veteran's spouse at the time of his death.

In October 2019 and August 2020, the Board remanded these matters for additional development.

The Board notes that this case also involves an interested party M. A. H., who has previously also requested recognition as the surviving spouse.  She is represented by The American Legion.

1. Entitlement to recognition of the appellant (L. S.) as the Veteran's surviving spouse for VA benefits purposes is remanded.

2. Entitlement to DIC, death pension, and accrued benefits is remanded.

The appellant (L. S.) is seeking to be recognized as the Veteran's surviving spouse. In addition, an interested party (M. A. H.) also previously sought to be recognized as the Veteran's surviving spouse.  Since there are two individuals claiming to be the Veteran's lawful surviving spouse (and thus eligible for VA death benefits), this appeal involves a simultaneously contested claim.  See 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(p).  Moreover, a contested claim "automatically" exists if two people allege to be the legal surviving spouse, and both file a formal claim for the same benefit, such as the case here.  In this respect, the allowance of the appellant's appeal as the Veteran's lawful surviving spouse, could result in a denial of benefits to M. A. H., or vice versa.

Despite the Board's October 2019 Remand instructions that the AOJ should ensure that all contested claim procedures were followed, the AOJ has unfortunately failed to continue to apply the contested claim procedures in the current appeal.  The Board is cognizant that M. A. H. was sent copies of the September 2014 SOC and November 2014 VA Form 9 in February 2020.  However, notice of the April 2020 SSOC and August 2020 Board Remand were not sent to the contesting party (M. A. H.).  See 38 C.F.R. § 20.501(c).

The matters are REMANDED for the following actions:

1.  The AOJ must ensure that all contested claims procedures have been followed under 38 C.F.R. §§ 19.100-19.102, 20.500-20.504 and VBA Live Manual M21-1, Part III, Subpart vi, Chapter 6.  The contesting parties for the issue on appeal (recognition as a surviving spouse) are the appellant (L. S.) and the interested party (M. A. H.).  Furnish the interested party (M. A. H.) with copies of the April 2020 SSOC and August 2020 Board Remand.  

2. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the April 2020 SSOC.  If any benefit on appeal remains denied, a SSOC must be provided to the appellant.  After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. D. Deane, 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.