Citation Nr: 1754148	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  15-13 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death, to include recognition as the surviving spouse of the Veteran. 


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

M. Wulff, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1966 to November 1969.  He died in April 2014.  The appellant has claimed that she is the surviving spouse of the Veteran.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Pension Management Center in St. Paul, Minnesota.  Jurisdiction was subsequently transferred to the Regional Office (RO) in Portland, Oregon.

The appellant testified at a hearing before the undersigned Veterans Law Judge in April 2017.  A transcript of that proceeding is associated with the record.

This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

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

The appellant seeks service connection for the cause of the Veteran's death. However, the Board finds that additional development is necessary prior to the adjudication of the claim.

The term "surviving spouse" is defined in pertinent part as a person who (1) was the lawful spouse of a veteran at the time of the veteran's death; and (2) who lived with the veteran continuously from the date of marriage to the date of the veteran's death, except where there was a separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (3) who has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.  38 U.S.C. § 101(3) (2012); 38 C.F.R. § 3.50 (2017).

In this case, the evidence shows that the Veteran was incarcerated beginning in December 1984 and later married the appellant in February 1986.  In her August 2014 application for dependency and indemnity compensation (DIC) benefits, the appellant reported that she did not live continuously with the Veteran from the date of marriage to the date of his death.  In addition, during the April 2017 Board hearing, the appellant testified that she did not cohabitate with the Veteran following his release from incarceration.  She indicated that the Veteran had filed for divorce in California, but that he passed away before a divorce could become final.  Therefore, there appears to be a threshold question of whether the appellant is entitled to recognition as the Veteran's surviving spouse for the purposes of VA benefits.  38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b).  As such, the Board finds that remand is necessary in order for the AOJ to adjudicate this threshold question in the first instance.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should make a determination as to whether the appellant is entitled to recognition as the surviving spouse of the Veteran.  

2.  After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the claim should be readjudicated.  

If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case (SSOC).  Thereafter, the appellant and her representative should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  The SSOC should set forth the provisions pertaining to recognition as a surviving spouse, including 38 C.F.R. § 3.50(b).  

The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).



_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (2012), 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) (2017).



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