Kay v. PrincipiKay v. Principi
Before the Court is a February 21, 2001, Board of Veterans’ Appeals (Board or BVA) decision that denied the appellant‘s claim of entitlement to an effective date earlier than August 1, 1997, for the award of dependency and indemnity compensation (DIC) benefits. Both parties filed briefs, and the appellant filed a reply. Thereafter, the Court ordered the parties to file supplemental memoranda of law on questions involving
I. FACTS
The appellant, Etta Kay, is the surviving spouse of the veteran, Stewart J. Kay, who died in March 1981. R. at 15, 26. In April 1981, the appellant filed an application for benefits with the Social Security Administration (SSA) and was awarded a lump-sum death payment (LSDP) of $255 in May 1981. R. at 170.
The appellant filed an application for DIC with VA on July 16, 1997. R. at 28-31. Benefits were awarded, effective August 1, 1997, by a March 1998 VA decision, and the appellant was so notified. R. at 93-94. Thereafter, she sought an earlier effective date, arguing that in 1981 the military casualty officer had misinformed her as to potential entitlement to DIC. R. at 99. The Board denied her claim in August 1999 (R. at 115-18), and she appealed to this Court. Here, the parties submitted a joint motion for remand (R. at 121-42), which was granted by the Court (R. at 144). In the joint motion, the parties agreed that the Board‘s decision contained an inadequate statement of reasons or bases in that it incorrectly stated that the appellant had not filed for SSA benefits. R. at 123-126. Both parties also agreed that additional development related to the SSA documentation was necessary, since, pursuant to
In April 2000, SSA responded to the appellant‘s request for a copy of the 1981 application for death benefits she had filed. R. at 146. SSA acknowledged that the LSDP was paid in June 1981 (In a later correspondence, SSA stated that the payment was actually made in May 1981 (R. at 170)), but indicated that after five years all inactive folders are destroyed and, therefore, the appellant‘s application was not available. Id. In August 2000, the RO requested of SSA a copy of the application. R. at 168. The RO additionally requested that if no application was available, SSA provide a statement cоncerning the type of application that would have been filed in 1981 to receive an LSDP. Id. In September 2000, SSA responded: “According to our files the only application filed under [the veteran‘s] record was for the [LSDP]. This application was filed in April 1981. The LSDP of $255.00 was issued to [the appellant] in May 1981.” R. at 170. The rеcord does not reveal any further communications between SSA and the appellant or VA.
In October 2000, a Supplemental Statement of the Case was issued to the appellant. R. at 172-75. The appellant then requested that her appeal be forwarded to the Board. R. at 177-78. The February 21, 2001, Board decision here on appeal continued the denial of entitlement to an earlier effective date. R. at 1-12. The Board determined that the appellant‘s application for LSDP with SSA could not have been submitted on a jointly prescribed application for DIC benefits because, pursuаnt to
The appellant argues on appeal that
The Secretary argues that the Board correctly denied the appellant‘s claim for entitlement to an effective date earlier than August 1, 1997, for the award of DIC benefits. He also argues that the Board‘s findings of fact are supported by a plausible basis in the record and that the Board provided an adequate statement of reasons or bases for its decision. The Secretary asks the Court to affirm the Board‘s decision.
In response to the Court‘s order for supplemental memoranda, the Secretary argues that
A.
In Rodriguez, 189 F.3d at 1355, the Federal Circuit stated that “[i]t is doubtful whether [section 7722(d)] create[s] any enforceable rights for an applicant for benefits who did not receive assistance in presenting a claim” and thus, there is no justification for circumventing the controlling effective date pursuant to
B.
The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record.
If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); see also Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 347 (D.C.Cir.1989) (“The proper course in a cаse with an inadequate record is to vacate the agency‘s decision and to remand the matter to the agency for further proceedings.“).
Each party sent a letter to SSA in an effort to locate the appellant‘s original SSA application. R. at 146; see R. at 168. VA also requested an exрlanation of the type of form that would have been used to apply for death benefits from SSA in 1981. R. at 168. At oral argument, the Secretary principally relied on the following language of SSA‘s September 2000 response letter: “According to our files the only application filed under [the veteran‘s] rec
The Board‘s analysis also lacks historical support for distinguishing the type of aрplication used for LSDP (a one-time payment) from applications used for other benefits that require periodic payments for which SSA and VA have jointly prescribed applications, such as those listed in
Although the appellant asks the Court to reverse the Board decision and assign an earlier effective date, reversal is the appropriate remеdy only when “[t]here is absolutely no plausible basis” for the BVA‘s decision and where that decision “is clearly erroneous in light of the uncontroverted evidence in appellant‘s favor.” Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992). “Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasоns or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.” Tucker v. West, 11 Vet.App. 369, 374 (1998); see generally Fla. Power & Light Co., supra; Occidental Petroleum Corp., supra; Hicks v. Brown, 8 Vet.App. 417, 422 (1995). The Court finds that the Board‘s statement of its reasons or bases for its decision is insufficient and that the record on appeal is inadequate for judicial review. Accordingly, remand is the appropriate remedy.
The Court will not at this time address the other arguments raised by the appellant for the first time in this appeal. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (“A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule
III. CONCLUSION
Upon consideration of the foregoing, the February 21, 2001, decision of the Board is VACATED and the matter is REMANDED for readjudication consistent with this opinion.