Single Judge Application;dependency and indemnity compensation (DIC); 38 U.S.C. § 1310; substituted for accrued benefits; a claim for DIC benefits by an eligible person “is deemed to include a request to substitute if a claim for periodic monetary benefits . . . was pending before the agency of original jurisdiction or the Board of Veterans’ Appeals when the claimant died.” 38 C.F.R. § 3.1010(c)(2) (2021); So if the veteran had claims pending at the time of his death, the Board should have discussed entitlement to accrued benefits; 38 C.F.R. § 3.1010(g) states that a claim remains “pending if, at the time of the claimant’s death, the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired.”; appellant filed her claim for DIC benefits and the 1-year period to file a Notice of Disagreement had not expired, which meant that the veteran’s claims remained pending;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6449
JOANNE CLAIRE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Navy veteran Robert Claire served from 1967 until he retired in 2002. Record (R.) at 6, 2773-77, 2798. He died from cardiogenic shock in December 2014. R. at 2163. His surviving spouse, Joanne Claire, appeals an August 15, 2019, Board of Veterans’ Appeals (Board) decision that denied an earlier effective date for dependency and indemnity compensation (DIC), a benefit reserved for survivors of veterans who die “from a service-connected or compensable disability.” 38 U.S.C. § 1310. She also contends that, as the veteran’s surviving spouse, she should have been substituted for any claims that remained pending at the time of his death, which would allow her to collect accrued benefits. For the reasons set forth below, the Board’s decision is set aside, and the matters are remanded.
In November 2014, shortly before his death, VA awarded the veteran service connection for a surgical scar and post-traumatic stress disorder (PTSD), as well as an increased rating for a back condition. R. at 2600-05. In February 2015, the appellant filed a DIC claim, which VA denied in May 2015 because there was no evidence that the veteran’s death was due to a service-connected condition. R. at 2168-73, 2159. Ms. Claire asked the Agency in December 2015 to reopen her claim for DIC. R. at 2143-47. But in January 2016, VA again denied service connection for the
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veteran’s cause of death, stating that she “submitted no medical evidence or information to support [her] claim[] that the veteran’s cause of death was related to his military service.” R. at 2136-38.
In September 2017, she tried once more. R. at 2120-25. This time, VA granted her request for benefits, concluding that newly received medical evidence demonstrated that the veteran’s service-connected hypertension “was a predominant factor leading to his death.” R. at 111. But that didn’t end the matter. When VA initially assigned an effective date of February 1, 2018, she disagreed, arguing that her effective date should correspond to her initial claim, submitted in February 2015. R. at 104, 96. VA rejected that argument, granting an earlier effective date only as of September 15, 2017, which corresponded to the date of her most recent application for DIC benefits. R. at 57.
Ms. Claire appealed to the Board. As the Board noted, the “effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.” 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2) (2021). For claims to reopen a previously decided claim, the effective date is the date the claim is received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The Board found that, because the appellant did not appeal the January 2016 VA decision, that decision became final. And because that decision was considered final, the Board treated her most recent submission as a claim to reopen a previously decided claim, which meant that the appropriate effective date was the date the claim was received—September 15, 2017.
The parties agree that the Board overlooked 38 C.F.R. § 3.156(b), a regulation that might have afforded the appellant an earlier effective date. That provision covers the scenario that occurred here, where evidence is submitted after VA’s initial decision in a case but before the appeal period runs. It states that “[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed . . . , will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2021); see also 38 C.F.R. § 3.400(q) (stating the same rule). Bond v. Shinseki teaches that, because the regulation requires the Agency to “treat new and material evidence as if it was filed in connection with the pending claim, the VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim.” 659 F.3d 1362, 1367 (Fed. Cir.
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2011). And that determination must be “directly responsive to the new submission.” Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Until VA meets that obligation, “the claim at issue remains open.” Id.
The Secretary concedes that the Board failed to discuss whether VA has, at any point, rendered a determination that was “directly responsive” to the evidence submitted by the appellant in December 2015. He asks the Court to remand the matter for the Board to make this assessment in the first instance.
That course of action is appropriate. VA issued an initial decision in May 2015. The appellant had one year to appeal. See 38 U.S.C. § 7105. She submitted evidence in December 2015, before the 1-year appeal period expired, asking the Agency to reconsider its decision. The following month, VA denied service connection for the veteran’s cause of death, stating only that she “submitted no medical evidence or information to support [her] claim[] that the veteran’s cause of death was related to his military service.” R. at 2136-38. It is indeed unclear exactly what evidence was submitted, whether the evidence submitted was new and material, and whether the Agency’s decision was directly responsive to that submission.
The appellant asks the Court to go a step further and find for itself that the evidence submitted was new and material, that the Agency failed to directly respond to the evidence, and that her 2015 claim thus remains pending. But an inquiry that involves an initial assessment of the evidence submitted and a corresponding judgment call as to whether VA’s subsequent actions were directly responsive to that submission is a task for the Board, not this Court. See Tadlock v. McDonough, 5 F.4th 1327, 1335 (Fed. Cir. 2021) (instructing this Court to leave matters to the Board that are “open to debate”).
On a separate but related topic, when the veteran died, he had recently (only a month or so before) been granted service connection for a surgical scar and PTSD. He was also awarded an increased rating for a back condition at that time. Given this circumstance, the appellant contends that her claim for DIC benefits should have been construed as one for accrued benefits as well.
The Court agrees. “Certain survivors of a deceased VA benefits claimant may be entitled to accrued benefits, which are periodic monetary VA benefits to which the deceased claimant was entitled.” Ventris v. McDonough, _ Vet.App. , , No. 19-1860, 2021 WL 3864195, at *6 (Aug. 31, 2021). The appellant did not specifically ask for accrued benefits when she applied for DIC benefits. R. at 2168. But a claim for DIC benefits by an eligible person “is deemed to include
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a request to substitute if a claim for periodic monetary benefits . . . was pending before the agency of original jurisdiction or the Board of Veterans’ Appeals when the claimant died.” 38 C.F.R. § 3.1010(c)(2) (2021). So if the veteran had claims pending at the time of his death, the Board should have discussed whether Ms. Claire was entitled to accrued benefits. The Secretary contends that, because the veteran’s claims were decided favorably, there were no pending claims at the time of the veteran’s death. Yet, as the appellant points out, 38 C.F.R. § 3.1010(g) states that a claim remains “pending if, at the time of the claimant’s death, the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired.” When the appellant filed her claim for DIC benefits, the 1-year period to file a Notice of Disagreement had not expired, which meant that the veteran’s claims remained pending. The Secretary’s protest fails. Accordingly, the August 15, 2019, Board decision is SET ASIDE and the matters REMANDED for further consideration consistent with this decision.
DATED: October 29, 2021
Copies to:
Tara R. Goffney, Esq.
VA General Counsel (027)