Citation Nr: 0005165 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-10 902 ) DATE ) ) On appeal received from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to an effective date prior to June 19, 1997 for the award of dependency and indemnity compensation benefits. 3. Entitlement to waiver of recovery of an overpayment of dependency and indemnity compensation benefits. ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel REMAND The veteran, who served on active duty from August 1944 to June 1946, died in December 1989. The appellant has been recognized as his surviving spouse. In a July 1997 decision the RO granted entitlement to dependency and indemnity compensation, effective from the date of the appellant's claim, June 19, 1997 (despite some references to June 16, 1997). See 38 U.S.C.A. § 5111 (West 1991) (regarding the actual commencement date for such payments--which was followed in this case such that actual payments began in July 1997). In a June 1998 letter--apparently issued in response to Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998)--apparently without an actual claim by the appellant--the RO indicated that she was not entitled to accrued benefits. In a subsequent letter from the appellant that month, she indicated that she was not, in essence, seeking accrued benefits, but instead an earlier effective date for her award of dependency and indemnity compensation. She felt that she should be entitled to benefits from the date of the veteran's death. This appeal stems in part from the decision to deny this claim, which was clarified in yet another RO letter in June 1998 and the July 1998 statement of the case. Since that statement of the case addressed this issue properly, and since the appellant has timely appealed the effective date question, the Board finds that this issue is properly in appellate status. The evidence of record shows, however, that on her June 1997 claim for dependency and indemnity compensation benefits, the appellant was in receipt of Social Security Administration benefits. Although she stated that such benefits were based on her own employment, and that she did not expect her award to increase due to the veteran's death, he had died many years earlier. It is quite possible that her Social Security Administration benefits increased years earlier due to his death. Under 38 C.F.R. § 3.153 (1999), in some instances an application for Social Security Administration benefits may be considered a claim for VA death benefits. Assuming this claim remains viable, as discussed below, it should be determined if such a claim was filed with the Social Security Administration. If it were, this may entitle the appellant to an earlier effective date for the award of dependency and indemnity compensation. This appeal also stems from a February 1999 decision of the Committee on Waivers and Compromises (COW) denying a waiver of the overpayment of dependency and indemnity compensation benefits. This issue is inextricably intertwined with the issues of the effective date of the original award and whether the benefit was properly terminated. If the award becomes effective from an earlier date, (and she remains eligible to receive the benefit) then this may offset the amount determined to be owed. Similarly, if the award was improperly terminated, the need for a waiver of an overpayment may become moot. The RO provided notice of termination of the appellant's dependency and indemnity compensation in a September 1998 letter. Following the September 1998 notice of disagreement with the termination, the RO that month asserted that this matter was unappealable. The question of whether such a claim is appealable, however, is a question of the Board's jurisdiction. As a matter of law, the Board has jurisdiction over issues involving dependency and indemnity compensation. 38 C.F.R. § 20.101(a)(1), (2) (1999). Moreover, the question of the Board's jurisdiction is an appealable issue itself: "all claimants have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular issue." 38 C.F.R. § 20.101(c). Subject to review by courts of competent jurisdiction, only the Board will make final decision with respect to its jurisdiction. Id. The Board is aware that the RO may have followed M-21-1, Part IV, 20.20(b)(1) in determining that no notice of appellate rights was necessary, i.e. implying no right of appeal. The Board, however, is in no way bound by that particular provision. 38 C.F.R. § 19.5 (the Board is not bound by Department manuals, circulars, or similar administrative issues); see Morton v. West, 12 Vet. App. 477 (1999); Dyment v. West, 13 Vet. App. 141 (1999); but compare Fugere v. Derwinski, 1 Vet. App. 103 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). While the impetus behind such a provision in M21-1 may have been that the VA would have no jurisdiction to award dependency and indemnity compensation once an election for FECA benefits was made, such a determination amounts to a decision denying benefits, subject to appeal like any other question of eligibility for, or entitlement to, VA benefits. Since the appellant filed a timely notice of disagreement with respect to the termination of dependency and indemnity compensation, the Board's jurisdiction has been triggered. At this point, the RO should not issue a statement of the case with respect to whether the termination of dependency and indemnity compensation is appealable. Rather, the issue must be REMANDED, per Manlincon v. West, 12 Vet. App. 238 (1999), so that the RO can issue a statement of the case on the underlying claim itself: whether termination of dependency and indemnity compensation was proper. In this regard, the Board notes that further development is needed on this issue as well. The purported reason for the termination of the appellant's dependency and indemnity compensation was that she was also receiving benefits under the Federal Employees Compensation Act (FECA), prohibited by 38 C.F.R. § 3.708. It is not clear from the record, however, why the appellant has been receiving FECA benefits. Although her June 1997 claim indicates that FECA benefits were claimed by the appellant, it is not clear that her current award of FECA benefits is based on the death of the veteran. On the facts as shown in the claims file, it is entirely possible that she is receiving FECA benefits based upon her own work injury and any FECA claim pertaining to the veteran had been denied. In short, the basis of her FECA award is unknown. To apply 38 C.F.R. § 3.708 properly, additional facts must be uncovered before a determination can be made with respect to whether dependency and indemnity compensation was properly terminated. In light of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the Office of Workers' Compensation Programs (OWCP), in Washington, DC, to obtain all available, relevant information pertaining to the appellant's FECA award. This requested data should include, but is not necessarily limited to, the date the FECA award began, the disability/ies upon which it is based--and for which individual, and the amount of the award. Any paperwork evidencing an election to receive a particular benefit should be obtained as well. The OWCP should be advised of the VA benefits potentially payable, the effect of any election as to overall VA entitlement, and the name and address of the appellant. The RO should undertake any further development pursuant to M21-1, Part IV, 20.16- 20.20 or other applicable provisions therein, that is not inconsistent with the Board's appellate practice or this REMAND. As may be appropriate or necessary, the RO may wish to contact the appellant for pertinent information as well. All such information obtained should be associated with the claims file. 2. After all such available information is obtained, RO should then readjudicate whether the termination of dependency and indemnity compensation was proper. If the claim remains denied, the RO is directed to promulgate a statement of the case on this issue and to provide the appellant with the appropriate notice of appellate rights. 3. Unless the RO determines that FECA benefits have precluded an award of dependency and indemnity compensation from the date of the veteran's death in December 1989, the RO should further develop the issue of entitlement to an earlier effective date. In this regard the RO should contact the Social Security Administration to obtain any records of a claim for benefits pertaining to the veteran's death. 4. If the RO readjudicates the effective date issue pursuant to 3 of this REMAND, and ultimately sets a new effective date for the award of dependency and indemnity compensation, or if the RO determines the benefit was improperly terminated, the amount of the overpayment should be recalculated. If a lesser (but actual) overpayment is calculated, the RO should refer the case to the COW for readjudication of the waiver claim. 5. If any claim is not resolved to the appellant's satisfaction, she should be provided with either a supplemental statement of the case or a statement of the case, as appropriate, and an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. THOMAS J. DANNAHER 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).