Citation Nr: 22019833 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 18-50 668 DATE: April 3, 2022 REMANDED Entitlement to recognition as the surviving child of a deceased veteran for the purposes of dependency and indemnity compensation (DIC) is remanded. REASONS FOR REMAND This case comes to the Board from an August 2018 letter decision of the Agency of Original Jurisdiction (AOJ), which denied the appellant's claim for dependency and indemnity compensation (DIC). The appellant suggests he is eligible for this benefit because of his father's status as a deceased veteran and his own status as the child of a veteran who became permanently incapable of self-support before he reached 18 years of age. In July 2020, the appellant testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. The Board remanded this case for further development in September 2020. Verifying the Air Force service of the appellant's father has been difficult because the potentially relevant documents for example, a death certificate, a marriage certificate, and the appellant's initial application for benefits use different spellings for his father's surname. The record identifies two different dates as the dates of his father's birth and two different social security numbers. In its September 2020 remand, the Board instructed the AOJ to write to the appellant asking him to help clarify these inconsistencies in his father's identifying information. To help decide whether the appellant "became permanently incapable of self-support before reaching the age of 18 years" for the purposes of 38 C.F.R. § 3.57(a)(1)(ii), the Board ordered the AOJ to send a request to the Social Security Administration (SSA) seeking all the agency's records concerning the appellant. Finally, the Board instructed the AOJ to make reasonable efforts to verify the service of the appellant's father, including the preparation of a request through the Personnel Information Exchange System (PIES) using code S02. In November 2020, the AOJ mailed an appropriate letter explaining these inconsistencies and inviting the appellant to clarify matters. In January 2021, the appellant wrote a statement indicating that SSA used a spelling of his father's surname in which "i" is the second-to-last letter, while the Air Force used a slightly different spelling, in which "o" is the second-to-last letter. According to the appellant, his father's birthday was in 1901 (some earlier documents indicate 1898). He also wrote that he believed his father served in the Air Force between August 1954 and August 1956. Unfortunately, the AOJ made potentially significant mistakes, both when trying to obtain the appellant's records from the SSA and when trying to verify the Air Force service of the appellant's father. Most of the post-remand requests to SSA sought records concerning the appellant's father. There is nothing necessarily wrong with seeking these records, since they might help sort out the discrepancies in the father's identifying information. But the appellant's SSA records particularly, if it can be obtained, a copy of the administrative decision granting him disability benefits are likely among the most relevant documents for determining whether he became incapable of self-support before 18 years of age. At the hearing, the appellant testified that SSA identified him as a "helpless child" before he turned 18. The record includes a September 2020 letter from SSA which mentions, "monthly benefits as a disabled dependent of the [unidentified] wage earner." The same letter identifies May 31, 1978 as the date of "onset to social security disability" and September 1, 1992 as the date of "onset to supplemental social security income disability" both of which are after the appellant turned 18. But another document, labelled "SSA inquiry results", identified the "initial entitlement date" for the appellant's benefits as July 1965, when he was younger than 10 years old. For these reasons, the September 2020 remand specifically asked the AOJ to request, "all of the appellant's records not only medical records, but also all other SSA records, including but not limited to copies of the appellant's application to the SSA and the SSA decision." (emphasis added). Unfortunately, the subject heading of the AOJ's post-remand request for the appellant's SSA records identifies the document as a request for medical records. And it is clear from the SSA's May 2021 response that the agency understood it as a request for medical records only. The response indicated to the AOJ that, "We cannot send the medical records you requested." On the response form, the responding SSA employee also marked a box indicating, "There are no medical records." The response did not mention whether the agency had a copy of the decision granting benefits or a copy of the appellant's application for benefits. In May 2021, the AOJ tried to verify the Air Force service of the appellant's father by preparing a PIES request using request code S02. The search terms for this request used the birth date identified in the appellant's January 2021 statement. The request, however, used the version of the appellant's father's surname with "i" as the second-to-last letter, even though the appellant had written that this was the spelling used by SSA and that his father served in the Air Force using the "o" version of his surname. In September 2021, the AOJ received the following response to its request: "We cannot identify a record for this Veteran without the service number. See PIES help regarding branch rules." After receiving this inconclusive response, it would have been reasonable to follow up with the NPRC, to seek the help of a military records specialist, or at least to try again using a different spelling of the appellant's father's surname, the other social security number, and/or the 1898 date of birth. Instead, the AOJ issued a Supplemental Statement of the Case (SSOC) continuing to deny the appellant recognition as the surviving child of a deceased veteran. When an appeal is remanded, the claimant obtains a right to compliance with the Board's instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the need for further delay is regrettable, the available record will not support a finding that the AOJ substantially complied with the September 2020 remand orders. On remand, the AOJ should make new efforts to obtain relevant information about the appellant from the SSA and to verify the Air Force service of the appellant's father. The matters are REMANDED for the following action: 1. Send a request to the Social Security Administration (SSA) for all of their records concerning the appellant (not the appellant's father). The scope of this request is not limited to medical records but should include, if available, a copy of the appellant's initial application for SSA benefits and a copy of the administrative decision granting him disability benefits. The text of the request to the SSA, and any necessary follow-up requests, must make clear to the reader that the requested records include copies of the appellant's application for benefits and the SSA's decision and that the request is not limited to medical records. If copies of the relevant SSA decision and/or application are no longer available in that agency's files, the AOJ must contact the SSA and identify the type of SSA benefits awarded to the appellant. The AOJ must ask SSA whether the award of benefits to the appellant included a finding by that agency that the appellant became incapable of self-support before reaching the age of 18 years. The AOJ should prepare and associate with the claims file a written memorandum describing the SSA's response to this inquiry. 2. Make new efforts to verify the service of the appellant's father in the Air Force. The AOJ is advised that its PIES request, dated May 2021, used a spelling of the appellant's father's name in which the second-to-last letter is "i" but, according to the appellant, his father served in the Air Force using a different spelling of his name in which the second-to-last letter is "o". The AOJ is further advised that the September 2021 response to its May 2021 PIES request was inconclusive. If the first post-remand attempt to verify the appellant's father's service is unsuccessful, the AOJ should proceed with electronic mail follow-up to the VA liaison office at the National Personnel Records Center (NPRC), seek the help of a military records specialist, and pursue any other reasonable follow-up measures required by VA Adjudication Procedures Manual, M21-1, Part III, Subpart iii, Chapter 2, section D ("Control and Follow-up of Requests for Service Records") (updated December 1, 2021). All requests for records and any responses to those requests should be documented in the electronic claims file. 3. The AOJ should consider the need for any further development which may be necessary to decide the appellant's claim for dependency and indemnity compensation. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.