Citation Nr: 1648533	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-35 213	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center 
(Pension Center) in St. Paul, Minnesota


1.  Entitlement to recognition as a proper claimant for purposes of receiving VA death benefits.

2.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for the cause of the Veteran's death.


M. Thomas, Associate Counsel


The Veteran served on active duty from June 1946 to June 1947 and from January 1966 to December 1968.  He died in May 1998.  The appellant is the Veteran's son. 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In that decision, the RO reopened the claim of entitlement to service connection for the cause of the Veteran's death and denied the claim.  Regardless of any RO determination on the application to reopen, however, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The Board notes that, in a March 1980 rating decision, the appellant was determined to be the helpless child of the Veteran pursuant to 38 C.F.R. § 3.356 (2016).  There has been no adjudication revoking this determination.

In October 1998, the Veteran's widow, E. B., filed a claim for entitlement to service connection for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits.  She did not list any children on the application.  The RO denied this claim in November 1998 and found that the evidence did not establish that the Veteran's death was due to a service-connected disability.  Appropriate notice was provided to the Veteran's widow and the decision was not appealed.  Therefore, this November 1998 decision is final and is not subject to revision on the same factual basis.  See 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§ 20.1100 (2016).  An exception to this rule is 38 U.S.C.A. § 5108 (West 2014), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

The Board notes that, in the instant case, the threshold issue is whether the appellant is a proper claimant.  As discussed below, it is not clear from the current record whether the Veteran's widow is deceased and the appellant would be precluded as a matter of law from reopening the previously denied claim for service connection for the cause of the Veteran's death if she is alive.  Therefore, the Board has recharacterized this claim as reflected on the title page.

In April 2016, the appellant revoked his Power of Attorney, which had appointed Disabled American Veterans (DAV) as his representative. The Board finds that the appellant properly revoked DAV's representation and that he has not appointed another representative.  See 38 C.F.R. § 14.631(f)(1) (2016).  Therefore, he is considered to be proceeding pro se.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


In the December 2012 Substantive Appeal, the appellant requested a Board hearing by telephone.  The appellant also wrote that he was currently incarcerated and that he could not attend any hearing in person.  In addition, the appellant noted that a VA representative would need to contact the warden of his correctional facility to arrange for any hearing in a September 2012.  The Board also notes that the appellant is serving a life sentence in a state correctional facility and that the RO has not scheduled the appellant for his requested hearing.

VA has procedures to accommodate incarcerated claimants who request a hearing. See, e.g., Veterans Benefits Administration Adjudication Procedures Manual M21-1 (M21-1), pt. 1, ch. 4, sec 1(i) (2016) (noting that the person requesting a hearing is expected to appear in person but that non-appearance at a scheduled hearing by the claimant/beneficiary will be excused if there are extenuating circumstances, such as incarceration.).  Moreover, 38 C.F.R. § 20.700 provides for electronic hearing where "suitable facilities and equipment are available," and that "any such hearing will be in lieu of a hearing held by personally appearing before...the Board."  38 C.F.R. § 200.700(e) (2016).  Therefore, while VA does not have authority under 38 U.S.C.A. § 5711 (2016) to require a correctional institution to release an appellant so that VA can provide the necessary hearing at the closest RO, the RO should inquire as to whether the correctional institution has the facilities or equipment to support an electronic video conference hearing.  See also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (noting that the duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, since such individuals are entitled to the same care and consideration given their fellow veterans).

In light of the appellant's outstanding hearing request, the RO should schedule the requested in accordance with the M21-1. 

Accordingly, the case is REMANDED for the following action:

1.  Contact the correctional facility where the appellant is incarcerated and inquire as to the feasibility (i.e., equipment, etc.) of scheduling the appellant for a Board hearing at the facility via video conference, or at the RO (either in person or via video conference).

If accommodations are feasible, the RO should make arrangements to schedule the appellant (or alternatively his representative on his behalf), for the appropriate hearing before a Veterans Law Judge at the correctional facility in accordance with applicable procedures and available accommodations at the facility.  See, e.g., Veterans Benefits Administration Adjudication Procedures Manual M21-1 (M21-1), pt. 1, ch. 4, sec. 1(q).  The appellant and his representative should be notified of the time and place to report for the hearing.

2. If the appellant's incarceration will prevent his appearance for a hearing, the RO should explore all reasonable avenues for accommodating the hearing request, bearing in mind that he is represented in his appeal.  See 38 C.F.R. § 20.700 (b), (c) (if good cause is shown, representatives alone may personally present argument to the Board at a hearing, or may present such argument in the form of an audio cassette).  The appellant should be informed of the alternatives to offering personal testimony before the Board, including submitting a statement to be considered by the Board in deciding the appeal.  

3. If the scheduling of a VA hearing is not feasible in this case, written documentation to that effect should be included in the claims file. 

The appellant has the right to submit additional evidence and argument on the matters 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 (West 2014).

Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).


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