Citation Nr: 0006408 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-03 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the veteran's countable income is excessive for improved pension purposes. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Hudson, Counsel REMAND The veteran had active service from December 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) determination dated in January 1995 that the veteran's countable family income was excessive for pension purposes. In August 1997, the Board remanded the case for further development, and the file has now been returned to the Board. As a threshold matter, the veteran's initial claim was accompanied by medical evidence of his total mental disability due to Alzheimer's disease, and, as a result, all action on this claim has been taken by his wife. The RO has required his wife to obtain the veteran's mark, and the signature of two witnesses, on documents submitted in connection with this claim. However, where a claimant has been rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a Notice of Disagreement and a Substantive Appeal may be filed by a fiduciary appointed to manage the claimant's affairs by the Department of Veterans Affairs or a court. 38 C.F.R. § 20.301(b) (1999). Thus, the veteran's wife should be appointed his fiduciary so that she may pursue the claim as the appellant, unless there are circumstances which warrant otherwise. This is particularly important in this case, where there is an outstanding hearing request in the appeal. In this regard, the substantive appeal dated in February 1996, indicated that the veteran wanted a hearing before a member of the Board, to be held at the RO, and a video conference hearing was scheduled for May 1997. However, in May 1997, the veteran's wife returned a form, declining the video conference hearing, and indicating that she preferred to wait for a future visit by a member of the Board. However, a hearing was never scheduled. Moreover, although it appears that the RO has not been able to contact the veteran, it is unclear what measures have been taken. In this regard, pursuant to the prior remand, additional information was requested from the veteran at his wife's address (he resides in a nursing home) in September 1997. No response was received, but there is no documentation in the file that this is not the correct address. Moreover, there is a letter dated in September 1998 from a VA nursing home, providing a new address for the veteran, effective in September 1998. Although there is a memorandum from the veteran's representative, dated in May 1999, stating that they were attempting to contact the veteran, and "whereabouts unknown" is noted on the Certification of Appeal, there is no documentation in the file, such as a report of contact, or returned mail, that anyone attempted to contact the veteran at his new address, or attempted to locate his wife through that address. Although it is generally the responsibility of the claimant to inform VA of his or her correct address, in this case, the medical evidence of record indicates that the veteran is completely disabled due to Alzheimer's disease, and the RO has heretofore not recognized his wife as the appellant; consequently, she cannot be held legally responsible for actions required of an appellant. Consequently, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should attempt to contact the veteran and his wife, beginning with the address noted on the September 10, 1998, letter from a VA nursing home, and continuing, if necessary, with the most recent known address of his wife, the telephone number contained on the form she returned in May 1997, and the VA nursing home itself. All attempts to locate the veteran and his wife must be documented in the file. 2. If the RO is successful in locating the veteran and his wife, the RO should appoint the veteran's wife as his fiduciary, and allow her to proceed as the appellant in this claim, unless the RO documents reasons why such an appointment is not appropriate. If the latter, the RO should appoint another fiduciary, to pursue the appeal on the veteran's behalf. 3. If the RO is able to locate the veteran, but not his wife, an appropriate fiduciary should be appointed, to pursue the appeal on the veteran's behalf. 4. Thereafter, the RO should schedule the veteran for a hearing, to be held at that RO, before a member of the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JEFF MARTIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).