BVA9503525 DOCKET NO. 93-08 893 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether there were accrued benefits that were due and unpaid to the veteran prior to his death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from October 1967 to October 1973. This appeal arises from an April 1992 decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), denying the appellant accrued benefits that were due and unpaid to the veteran prior to his death. REMAND In May 1991, the veteran submitted VA Form 21-526, Veteran's Application for Pension to the RO. In this form, he indicated that he was separated and that he had one dependent child. He provided the Social Security number of this child on the application. He did not indicate the income of his spouse or child. In a June 1991 rating decision, the RO granted the veteran entitlement to nonservice-connected pension . In July 1991, the regional office notified the veteran of this allowance, and this letter requested the veteran to notify the RO of any changes in his income or net worth or any changes in his marital status or number of dependents. In August 1991, the veteran subsequently filed a VA Form 21-686c, Declaration of Status of Dependents, in which he claimed a 1959 marriage to K. J., an October 1973 marriage to [redacted] (the appellant), and indicated that he had four children. In September 1991, the regional office notified the veteran that his claim was being processed, and the RO requested a certified copy of the public record of termination of his first marriage, a certified copy of his marriage certificate, and certified copies of the birth certificates for each child. The veteran subsequently forwarded a certified copy of the marriage certificate to the appellant, educational information regarding his oldest child, and certified copies of the birth certificates for three of the four children (for the fourth, he forwarded a Florida birth registration card). In November 1991, the RO requested the veteran to identify all income received by his spouse and each of his children, the original or certified copy of the birth certificate for one of his children, the Social Security numbers for his four children, information regarding the termination of his first marriage, and information about his geographical relationship with the appellant. On December [redacted] 1991, the veteran died. The appellant perfected her right to file a claim for entitlement to accrued benefits by filing a VA Form 21-601, Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary, in July 1992, within one year of the veteran's death in December 1991. Although the RO initially notified the appellant in April 1992 that she was entitled to accrued amounts that were due but unpaid at the time of the veteran's death, in July 1992, the regional office indicated to her there were no accrued amounts payable. She filed a notice of disagreement in October 1992. Subsequent to receiving the notice of disagreement, the RO issued the appellant a statement of the case in November 1992. The denial was based upon the fact that, at the time of the veteran's death, evidence necessary to the dependency determination ( to wit; evidence of the veteran's dependents' Social Security numbers, the dependents' income information, proof of termination of the veteran's first marriage, information regarding the veteran's geographic relationship with the appellant, and evidence of his support of the appellant) was not currently on file at the time of the veteran's death. The RO indicated that the Code of Federal Regulations required that all evidence in support of the appellant's claim must have been in the file at the date of death. In accordance with 38 C.F.R. § 3.1000(d)(4)(ii) (1994), "evidence in the file at date of death," will be considered to have been met when, in the case of a veteran whose award is subject to increase by reason of the existence of dependents, there is on file at the date of the veteran's death prima facie proof of dependents, provided satisfactory evidence is furnished in support of the claim for accrued benefits. (Emphasis added) The provisions of this subdivision are not applicable to original awards of accrued benefits. Id. The present claim does not involve an original award of accrued benefits, but rather derives from the veteran's application for increased pension rights based upon dependency prior to his death. Prior to the veteran's death and in compliance with the RO's request, the veteran filed a VA Form 21-686(c), Declaration of Status of Dependents, which listed his present spouse (the appellant) and four children with dates of birth and addresses. The letter did not request the social security numbers of his dependents. In addition, the veteran filed a certified copy of his marriage certificate to the appellant, certified copies of birth certificates for three children, and a certified copy of a birth registration card for the fourth. In conformance with the policy of the VA to administer the law under a broad interpretation, consistent with the facts shown in each case, the evidence on file at the time of the veteran's case clearly presented a prima facie case. 38 C.F.R. §3.102 (1994). That is, on its face, the veteran appeared to have a wife and four children. Thus, the "evidence in the file at the date of death" requirement of 38 C.F.R. § 3.1000(a) (1994) should have been considered to have been met at the time of the veteran's demise. That the RO did not find the evidence sufficient to develop the claim is, in great part due to their own inefficiency in not listing in a single letter to the veteran all the documents necessary to meet the requirements. In Hayes v. Brown, 4 Vet.App. 353 (1993), the Court of Veterans Appeals (Court) discussed the issue of the evidence required to be on file at the time of the veteran's death in a claim for accrued benefits. In that case, the Court indicated that requirements and provisions contained in the VA Manual, M21-1, had "the force of law" on a par with the Code of Federal Regulations. Hayes at 360; Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990). It pointed out that VA Manual, M21-1, Section 5.25(b) stated that 38 C.F.R. § 3.1000(d)(4) provided for the acceptance of evidence after death for verifying or corroborating evidence in the file at the time of death. Hayes at 360. Because the evidence on file at the time of the veteran's death presented a prima facie case that he had dependents which might entitle him to an increase in his nonservice-connected pension, the appellant's claim for accrued benefits may not be denied simply because every item of evidence necessary for the RO to render a dependency determination was not on file at the time of the veteran's death. The appellant must be allowed an opportunity to submit the additional evidence necessary to render a full and informed dependency determination. While the appellant submitted additional evidence of dependency which the RO had initially requested of the veteran, all of the required evidence necessary for the determination has not yet been submitted. The case is therefore REMANDED to the regional office for the following actions: 1. The regional office should notify the appellant that because there was prima facie proof of dependents supporting a possible award of increased nonservice- connected pension at the time of the veteran's death, she is entitled to submit the additional evidence of dependency necessary to render a determination of her right to receive accrued benefits which were due and unpaid prior to the veteran's death. The regional office should inform the appellant of exactly those items of evidence necessary to complete the dependency determination and should request that the appellant submit this evidence in a timely fashion. 2. Following completion of this development, the appellant's claim for accrued benefits should then be reviewed by the RO, to include consideration of all evidence received and collected during the remand. If the decision remains adverse, a supplemental statement of the case should be issued, and the appellant and her representative provided a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant need do nothing until further notified. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).