Citation Nr: 0810534 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-25 266A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death, to include the question of whether an appeal has been timely perfected. 2. Entitlement to dependency and indemnity compensation (DIC) benefits, pursuant to the provisions of 38 U.S.C.A. § 1318, to include the question of whether an appeal has been timely perfected. 3. Entitlement to dependents' educational assistance benefits under 38 U.S.C.A. Chapter 35, to include the question of whether an appeal has been timely perfected. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from September 1953 to September 1955. The veteran died on November [redacted], 2003; the appellant is his widow. The present matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision in which the RO denied service connection for the cause of the veteran's death, as well as DIC benefits, pursuant to the provisions of 38 U.S.C.A. § 1318, and dependents' educational assistance benefits, under 38 U.S.C.A. Chapter 35. In October 2004, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2005. As will be explained in more detail below, the record raises a question as to whether the appellant perfected her appeal of these issues by filing a timely substantive appeal. For the reasons expressed below, the claims on appeal (recharacterized to reflect the jurisdictional question noted above) are being remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on her part, is required. REMAND The Board shall not entertain an application for review on appeal unless it conforms to the law. See 38 U.S.C.A. § 7108 (West 2002). 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). A substantive appeal perfects the appeal to the Board and frames the issues to be considered. See Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or other correspondence containing the necessary information. The substantive appeal also must indicate what issues are being perfected. Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. See 38 C.F.R. § 20.202 (2007). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (2007). Where an appellant files a timely NOD but fails to timely file a substantive appeal, the appeal is untimely. See Roy v. Brown, 5 Vet. App. 554, 556 (1993). As indicated in the Introduction above, following the May 2004 rating decision denying each claim on appeal the appellant filed a NOD in October 2004, and the RO issued a SOC, addressing all three issues, in May 2005. The claims file reflects that the SOC was mailed to the appellant on May 26, 2005. The only document filed by the appellant or her representative after the SOC that addresses the claims for the cause of the veteran's death, DIC benefits, and dependents' educational assistance benefits is a VA Form 21- 4138, Statement in Support of Claim, that was received at the RO on August 19, 2005. In this document, the appellant requests that the RO proceed with her appeal, but she also indicated that this document should be considered a NOD and that she wanted a SOC issued so that she could appeal to the Board. However, this document-filed more than one year after the May 2004 notification of the rating decision on appeal and more than 60 days after the May 2005 SOC-is outside the relevant time period for filing a substantive appeal. Thus, even though the RO certified to the Board the claims for service connection for the cause of the veteran's death, DIC benefits, and dependents' educational assistance benefits, and the veteran's representative addressed the cause of death claim in its March 2008 brief filed with the Board, it appears that the appellant has not filed a timely substantive appeal, and hence, has not timely perfected an appeal, as to the aforementioned claims.. The Board notes that in a signed statement received by the RO in February 2006, the appellant conceded that she had still not filed a VA Form 9 indicating an appeal to the Board. Because the RO has not addressed the question of whether a timely appeal has been perfected with respect to each matter on appeal, the appellant veteran has not been furnished the pertinent legal authority governing this jurisdictional question, nor has she been afforded the opportunity to respond. Accordingly, to avoid any prejudice to the appellant, the RO should address this jurisdictional question, in the first instance, in connection with each claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). If the RO finds that an appeal has not been timely perfected with respect to these claims, then it must furnish to the appellant an appropriate supplemental SOC (SSOC) that includes citation to and discussion of all pertinent legal authority, and afford her and her representative the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should address the question of whether a timely appeal has been perfected with regard to the denial of service connection for the cause of death, DIC benefits pursuant to 38 U.S.C.A. § 1318, and dependents' educational assistance pursuant to 38 U.S.C.A. Chapter 35. 2. If the RO's determination on the jurisdictional question on each claim is adverse to the appellant, the RO must furnish to the appellant and her representative an appropriate SSOC on these matters that includes citation to and discussion of all legal authority governing the jurisdictional question, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 3. To help avoid future remand, the RO must ensure that all requested action has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and 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 period. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).