Citation Nr: 23027239 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 18-50 668 DATE: May 8, 2023 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 reaching 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 and, most recently, in April 2022. There have been difficulties verifying the appellant's father's Air Force service because relevant documents have used different spelling of his father's surname, two different social security numbers, and two different dates of birth. In its April 2022 remand, the Board explained that potentially significant mistakes in the AOJ's prior records requests to both the National Personnel Records Center (NPRC) and to the Social Security Administration (SSA) could have prevented establishing the appellant's eligibility for DIC benefits. The Board remanded the case, instructing the AOJ: (1) to request to SSA records concerning the appellant (not the appellant's father) and the requested records should include not only medical records but also records concerning the kind of benefits the appellant receives from the SSA; and (2) to make new efforts to verify his father's Air Force service using a specific version of his father's surname. The Board instructed the AOJ to, "prepare and associate with the claims file a written memorandum describing the SSA's response to this inquiry." In September 2022, the AOJ sent the SSA a request for records, which clearly failed to comply with the Board's remand orders. The request asked the agency to, "Please send SSA medical records for this claimant." There is an undated response form the SSA, indicating that the agency had no medical records concerning the appellant. In November 2022, the AOJ mailed a letter to SSA which, unlike the September 2022 request, correctly explained the scope of the requested records, asking the SSA to provide a copy of the appellant's application for benefits and a copy of the decision granting him benefits. If this information was unavailable, the letter asked the agency to, "identify the type of SSA benefits awarded to the appellant . . . Please clarify if the award of benefits to the appellant included a finding by [the SSA] that the appellant became incapable of self-support before reaching the age of 18 years." On page 4 its most recent Supplemental Statement of the Case (SSOC), issued in March 2023, the AOJ listed two items of evidence it considered before denying the claim in this case: "Response from the Social Security Administration, received January 24, 2023" and "Memo from the US Air Force received November 9, 2022". But if the AOJ received an answer to its November 2022 letter to the SSA, that answer was never associated with the claims file. The only document with a receipt date of January 24, 2023 is a record describing the appellant's medical appointment with a physician assistant in December 2022. This record indicates diagnoses of dementia and paranoid schizophrenia. Without a copy of the SSA's answer to the November 2022 letter, it is unclear whether the AOJ complied with its duty to assist the appellant. But based on the description of the SSA's response in the narrative section of the SSOC ("Response from the Social Security Administration was that no medical records exist"), it seems possible that the AOJ mistakenly described the SSA's response to the inadequate September 2022 request, the scope of which was limited to medical records. The AOJ failed to prepare the "written memorandum describing the SSA's response to this inquiry" required by the April 2022 remand orders. 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 April 2022 remand orders. As noted, the March 2023 SSOC refers to a "Memo from the US Air Force received November 9, 2022" - but the document verifying the appellant's father's Air Force service appears to be a letter from a VA Regional Office. The results of the AOJ's most recent request to the NPRC to verify his father's service were inconclusive. Under these circumstances, the AOJ should clarify the source of its information about the appellant's father's Air Force service. The matter is 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 is advised that the language of its letter to the SSA, dated November 28, 2022, was appropriate. But although the March 2023 SSOC suggests that it received a response to this letter on January 24, 2023, the currently available information in the claims file does not include a copy of any response to the November 2022 letter. There is an undated response to an earlier electronic request to the SSA for medical records, but this response only indicates that the SSA has no medical records concerning the appellant. THE AOJ SHOULD PREPARE AND ASSOCIATE WITH THE CLAIMS FILE A WRITTEN MEMORANDUM DESCRIBING THE SSA'S RESPONSE TO THIS INQUIRY. 2. The AOJ should clarify the source of its information concerning the appellant's father's service in the Air Force. According to the March 2023 SSOC, the AOJ obtained a memorandum from the Air Force verifying the relevant service. However, the document certifying the appellant's father's Air Force service is a letter from the AOJ, dated October 24, 2022, and the most recent request for service records to the NPRC using the Personnel Information Exchange System (PIES), completed on September 21, 2022, was unsuccessful. Accordingly, the AOJ should prepare a memorandum for the claims file explaining how it verified the appellant's father's Air Force service before preparing the October 24, 2022 letter. ONLY IF THE AOJ FINDS THAT THE APPELLANT'S FATHER'S SERVICE IN HAS NOT BEEN VERIFIED, make new efforts to verify the service of the appellant's father in the Air Force. If necessary, these efforts should include an appropriate request to the NPRC using the PIES system, electronic mail follow-up to the VA liaison office at the National Personnel Records Center (NPRC), seeking the help of a military records specialist, and pursuit of any other reasonable follow-up measures required by VA Adjudication Procedures Manual. 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.