08-09 724

• Court: Board of Veterans' Appeals
• Decided: March 8, 2010
• Docket: 08-09 724
• Status: Unpublished

Opinion

Citation Nr: 1008505 Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 08-09 724A ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected disability, for accrued benefits purposes.

REPRESENTATION

Appellant represented by: Kenneth B. Mason, Attorney at Law

ATTORNEY FOR THE BOARD

S. Coyle, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1965 to October 1968, and died on December [redacted], 2006. The appellant is the Veteran's widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), denying entitlement to service connection for a psychiatric disorder for accrued benefits purposes. A timely appeal was noted from that decision.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

REMAND

An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, see Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain individuals, such as surviving spouses, may be entitled to accrued benefits under certain conditions. 38 U.S.C.A. § 5121. A claim for accrued benefits must be filed within the year after the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.

In order to support a claim for accrued benefits, the Veteran 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.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998).

The Veteran's claim for service connection for a psychiatric disorder was most recently denied by the Board in a decision dated in August 2004. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). A single judge decision was issued in September 2006, vacating the August 2004 decision and remanding the claim to the Board for readjudication. Specifically, the Court held that the evidence of record raised a theory of entitlement to service connection for a psychiatric disorder as secondary to a service-connected disability, and ordered that the Board consider the secondary service connection claim on the merits. Before the Board could take up the matter of secondary service connection, the Veteran died. Nevertheless, because the claim had been remanded to the Board for consideration of entitlement to secondary service connection, the Board finds that a claim for service connection was pending at the time of the Veteran's death. See Taylor v. Nicholson, 21 Vet. App. 126 (2007).

In June 2007, within one year of the date of the Veteran's death, the appellant filed a claim for dependency and indemnity compensation and death pension benefits. Under these circumstances, a claim for death pension, compensation, or dependency and indemnity compensation by a surviving spouse is deemed to include a claim for any accrued benefits. See 38 C.F.R. §§ 3.152(b)(1); 3.1000(c).

As the Veteran had a claim for service connection pending at the time of his death, and the appellant filed what must be deemed to include a claim for accrued benefits within one year of the date of his death, the Board finds that the claim for accrued benefits must be adjudicated on the merits. See 38 C.F.R. § 3.1000; Taylor v. Nicholson, 21 Vet. App. 126 (2007).

In considering the appellant's claim for accrued benefits, generally only evidence contained in the claims file at the time of the Veteran's death is evaluated. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the U.S. Court of Appeals for Veterans Claims (Court) held that service department and certain VA medical records are considered as being constructively in the claims file at the date of death although they may not physically be included with the file until after that date. See also 38 C.F.R. § 3.1000(d)(4); Bell v. Derwinski, 2 Vet. App. 611 (1992).

In correspondence dated in June 2007, the appellant indicated that the Veteran had been treated at the VA Outpatient Clinic (OPC) in Jacksonville, Florida, until his death in December 2006. The Veteran's death certificate reflects that his death was due in part to renal failure, for which the Veteran was service-connected. In fact, service connection for the cause of the Veteran's death has been granted. As the Jacksonville OPC records concern the Veteran's treatment for a service-connected disability, and since the claim at issue concerns service connection for psychiatric disorder as secondary to a service-connected disability, the Board finds that there is a possibility that the Jacksonville OPC records concerning the Veteran's treatment for service-connected disorders are relevant to the appellant's accrued benefits claim. Thus, VA's duty to assist the appellant in the development of her claim includes obtaining these VA treatment records and associating them with the claims file. See 38 U.S.C.A. § 5103(a)-(c); 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993).

Accordingly, the case is REMANDED for the following action:

1. Contact the Jacksonville OPC and request that records of the Veteran's treatment dated from January 2005 to December 2006 at that facility be provided for inclusion with the claims folder. If such records are unavailable, a negative response should be obtained.

2. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the appellant and her representative must be provided a supplemental statement of the case. The appellant must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112.

_________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).