Citation Nr: 0820966 Decision Date: 06/26/08 Archive Date: 06/30/08 DOCKET NO. 06-02 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than September 1, 2004 for the grants of service connection for non-small cell lung cancer (NSCLC) and for metastatic brain cancer, secondary to NSCLC, to include the question of whether a valid notice of disagreement (NOD) was timely filed. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to August 1967. He died on January [redacted], 2005. The appellant is his widow. This appeal to the Board of Veterans' Appeals (Board) arises from a December 2004 rating decision in which the RO granted the veteran service connection and assigned a 100 percent disability rating for NSCLC and for metastatic brain cancer, secondary to NSCLC, each effective September 1, 2004. Notice of the rating decision was issued to the veteran on January 5, 2005. The veteran passed away on January [redacted], 2005. In January 2005, the appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse. In a February 2005 rating decision, the RO granted DIC, effective January [redacted], 2008. In a the notice letter also dated in June 2008, the RO advised the appellant that it had also approved accrued benefits based on a check for benefits payable to the veteran during his lifetime that was returned. In April 2005, the appellant filed a VA Form 21-4138, Statement in Support of Claim, in which she expressed disagreement with the effective dates assigned for the grants of service connection for NSCLS and for metastatic brain cancer in the December 2004 rating decision. In a May 2005 administrative decision, the RO declined to accept the appellant's statement as a valid notice of disagreement (NOD) on the basis that the veteran passed away prior to the appellant filing her NOD, thereby rendering the December 2004 decision final. The RO issued a December 2005 statement of the case (SOC) that characterized the matter on appeal as whether the appellant submitted a valid NOD with assigned effective date. The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2006. In April 2008, the veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board's decision on the question of the validity of the appellant's NOD is set forth below. The claim for earlier effective date for the grants of service connection for NSCLC and for metastatic brain cancer-for which the appellant has completed the first of two actions needed to place this matter in appellant status-are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. In December 2004, the RO granted service connection and assigned 100 percent disability ratings for NSCLC and metastatic brain cancer, each, effective September 1, 2004. 2.. Notice of the December 2004 rating decision was issued to the veteran on January 5, 2005, prior to the veteran's death on January [redacted], 2005. 3. The appellant filed a d a valid and timely NOD with the effective dates assigned for the grants of service connection for NSCLC and metastatic brain cancer in April 2005, within the one year period following the RO's January 2005 notification of the December 2004 rating decision. CONCLUSION OF LAW The appellant's April 2005 NOD with the effective dates assigned for the grants of service connection for NSCLC and for metastatic brain cancer in the December 2004 rating decision constitutes a valid and timely NOD. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.160, 20.200, 20.201, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2006) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Given the Board's favorable disposition on the preliminary question of whether the appellant filed and a valid and timely NOD with the December 2004 decision, the Board finds that all notification and development action needed this fairly adjudicate this aspect of the appeal has been accomplished. The Board also notes, in any event, that the duties to notify and assist imposed by the VCAA are not applicable to jurisdictional matters. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). II. Analysis The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108. Pursuant to applicable law and regulation, an appeal consists of a timely filed NOD, in writing, and, after an SOC has been furnished, a timely filed substantive appeal. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007). An appeal is initiated by the filing of an NOD, which is a written communication from the claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (here, the RO). See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2007). Here, the appellant seeks an effective date earlier than September 1, 2004, for the grants of service connection for NSCLC and for metastatic brain cancer awarded to the veteran in a December 2004 rating decision. However, the preliminary question for consideration is whether the appellant filed a valid and timely NOD to initiate an appeal of the veteran's awards. In the rating action on appeal, the RO essentially concluded that, after the December 2004 rating decision in question, the veteran did not initiate an appeal as to the assigned effective date for both grants of service connection by filing a NOD before he died. Although this is correct, it fails to give import to the fact that the veteran had a full year after the January 2005 notification of the rating decision that granted service connection for the disabilities noted above, to filed an NOD with the assigned effective dates. See 38 U.S.C.A. § 7105 (b)(1); 38 C.F.R. § 20.302 (2007); see also Moore v. West, 13 Vet. App. 69, 71-72 (1999) ("[A]n NOD must be filed within one year from the date of mailing of notice of the result of initial review and determination made by the VARO."). As such, if an appeal was not initiated by a timely filed NOD by an eligible dependent, the December 2004 rating decision would become final in January 2006. See 38 C.F.R. § 3.160 (2007); see Taylor v. Nicholson, 21 Vet. App. 126 (2007) (finding that a veteran's claim for an earlier effective date was pending at time of his death, for purposes of his widow's accrued benefits claim, where claim was not finally adjudicated at time of veteran's death, as time remained in which a NOD with the RO decision otherwise could have been filed). The appellant filed a claim for accrued benefits in January 2005, within the appeal period for challenging the effective date of the veteran's awards.. For accrued benefits purposes, the appellant takes her husband's claim as it stands at the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Given this principle, and pursuant to the authority cited to above, the appellant had until January 2006 to express disagreement with the effective date for the veteran's awards assigned in the December 2004 rating decision. As she expressed disagreement with the effective date assigned for the grants of service connection for NSCLC and metastatic brain cancer in the April 2005 NOD, this document constitutes a valid and timely-filed NOD.. ORDER As the appellant's April 2005 NOD constitutes a valid and timely NOD with the effective dates assigned for the grants of service connection for NSCLC and for metastatic brain cancer in the December 2004 RO rating decision, to this extent, the appeal is granted. REMAND By filing a valid and timely NOD, the appellant has initiated appellate review of a claim for an earlier effective date for the veteran's awards (for accrued benefits purposes). The next step in the appellate process is for the RO to issue to the appellant an SOC summarizing the evidence relevant to those issues, the applicable legal authority, and the reasons for the RO's determinations. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, the claims for effective dates earlier than September 1, 2004, for the grants of service connection for NSCLC and for metastatic brain cancer, must be remanded to the RO for the issuance of an SOC. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: The RO should issue to the appellant and her representative an SOC addressing the claim for entitlement to an effective date earlier than September 1, 2004 for the grants of service connection for NSCLC and metastatic brain cancer. Along with the SOC, the RO must furnish to the appellant a VA Form 9, and afford her the applicable time period for perfecting an appeal as to this issue. The appellant and her representative are hereby reminded that appellate consideration of the matters identified above may be obtained only if a timely appeal is perfected. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs