Single Judge Application, Frederick v. Shinseki, No. 09-433, Restoration of DIC

Excerpt from decision below:
"Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted")."

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2324
VIRGINIA PLOUFFE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Virginia Plouffe, surviving spouse of veteran Ellis
Riggs, appeals through counsel a February19, 2009, decision of the Board of
Veterans'Appeals (Board) that denied restoration of dependency and indemnity compensation (DIC) benefits because she did not file for restoration by December 16, 2004. On January 12, 2011, this matter was stayed pending the disposition of the appeal in Frederick v. Shinseki, U.S. Vet. App. No. 09- 433 (argued Nov. 23, 2010). Frederick has been decided; thus, the stay is lifted. See Frederick v. Shinseki, No. 09-433, 2011 WL 922279 (Vet. App. Mar. 11, 2011). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the Board's decision will be set aside and the matter remanded for further adjudication.
Mrs. Plouffe's claim was denied because she filed for restoration of her
DIC benefits after December 16, 2004. Pursuant to Frederick, this is an improper basis for denying restoration of DIC benefits. See Frederick, 2011 WL 922279, at *4 (December 16, 2004 is "an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted"). Accordingly, remand is appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, Mrs. Plouffe may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

For the reasons stated above, the February 19, 2009, decision of the Board
is SET ASIDE
and the matter REMANDED for further adjudication.
DATED:
April 14, 2011
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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