Citation Nr: 1751220 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-50 356 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than August 18, 2014 for the award of Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to January 1953. He died in September 2010, and the appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2016 rating decision in which the RO, inter alia, granted service connection for the cause of the Veteran's death. The appellant filed a May 2017 notice of disagreement (NOD) with the assigned effective date. The RO issued a September 2017 statement of the case (SOC), and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2017. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. The RO denied service connection for the cause of the Veteran's death in a May 2013 decision , following which the appellant filed a timely NOD. 3. The RO issued an April 2014 SOC denying service connection for cause of the Veteran's death, and the weight of the evidence indicates that the presumption of regularity is for application with respect to the creation and mailing of the April 2014 SOC applies. 4. There is no timely substantive appeal or response to the April 2014 SOC of record, and no pertinent exception to finality applies to the May 2013 rating decision. 5. On August 18, 2014, the RO received the appellant's request to reopen the claim for service connection for the cause of the Veteran's death; the claim was ultimately granted, with an assigned effective date consistent with the date of receipt of the request to reopen. 6, There was no pending claim, prior to August 18, 2014, pursuant to which service connection for the cause of the Veteran's death could have been granted. CONCLUSION OF LAW The claim for an effective date earlier than August 18, 2014, for the award of service connection for the cause of the Veteran's death is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.105, 3.151, 3.156, 3.400, 19.29, 19.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). At the outset, the Board notes that, with respect to the earlier effective date claim decided herein, the appellant and her attorney have been notified of the reasons for the denial of the claim, and have been afforded full opportunity to present evidence and argument with respect thereto. The Board finds that these actions are sufficient to satisfy any fundamental due process owed the appellant in connection with this claim. As is explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis The appellant seeks an effective date prior to August 18, 2014, for the award of service connection for DIC or cause of death. Specifically, she contends that an effective date of September 23, 2010 (the date of the Veteran's death) is warranted as the DIC claim she filed in October 2010 remained pending. See May 2017 NOD; 38 C.F.R. § 3.400(c). She asserts that she was not properly notified about the April 2014 SOC issued in connection with the prior DIC claim. See 38 C.F.R. § 19.30. She contends the presumption of regularity with respect to notification of the April 2014 SOC is rebutted based upon correspondences from April 2014 through September 2014, to specifically include a VA representative's April 28, 2014 statement to her congressman, and her reports of non-receipt. Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a). If, however, a claim for service connection for cause of death after separation is received within a year of the Veteran's, the effective date will be the date of death; otherwise, the effective date is the date of the claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). The basic facts in this case prior to the issuance of an April 2014 SOC (discussed below), are not in dispute. The Veteran died in September 2010. The appellant filed an initial claim for service connection for cause of death the following month. The RO denied service connection for cause of death in a March 2011 rating decision. In January 2012, the appellant requested that this previously denied claim be reopened. The RO again denied service connection for cause of death in a May 2013 rating decision. The appellant filed a July 2013 NOD in response. The appellant disputes receipt of the April 2014 SOC issued in response to the July 2013 NOD. See May 2017 NOD and September 2017 substantive appeal. The record includes an April 11, 2014 SOC with a cover letter dated the same. See 38 C.F.R. §§ 19.29, 19.30. The cover letter notified the appellant that to complete the appeal, she must file a formal appeal and included VA Form 9, Appeal to the Board of Veterans' Appeals, to do so. The letter also informed her that the formal appeal must filed within 60 days of this letter or the remainder, if any, of the one-year period from the date of the letter notifying her about the action she appealed. It specifically informed her that if a response was not received within this period, the case would be closed. She was also notified that she had the option of requesting a time extension for filing the appeal, as well. On April 14, 2014, the appellant contacted her congressman to inquire about the status of her case. She reported being told by a VA representative the week before to expect to wait another eight months. On April 21, 2014, the appellant's congressman contacted VA on her behalf to inquire about her claim. On April 28, 2014, a representative from the Cleveland RO responded. She acknowledged receipt of several attachments concerning Myelofibrosis, information regarding the Veteran's radiation and prior VA rating decisions. She reported that according to VA's electronic records, the appellant's NOD was being reviewed by the appeals section. She stated that she would forward the congressional inquiry and associated documents to the appeals section for review. She suggested a 90 day follow up on the status of the appellant's NOD. In June and July 2014, the appellant contacted her congressman to inquire about the status of her case. On August 4, 2014, a representative from the congressman's office contacted VA about the case. On August 6, 2014, a VA representative responded that a SOC had been issued on April 11, 2014 and that VA did not have any record of a response from the appellant. On August 18, 2014, VA received VA Form 21-534EZ Application for DIC, Death Pension and/or Accrued Benefits from the appellant and this is the basis for the effective date in dispute. On August 20, 2014, VA received another congressional inquiry on the appellant's behalf. The congressional representative noted the appellant's report that she was not notified of a supplemental statement of the case (SSOC) and was under the impression that she missed the opportunity to submit additional evidence. On September 6, 2014, a representative from the Cleveland RO responded that the appellant received an April 11, 2014 SOC and the appeal was closed on June 30, 2014 for her failure to respond. In light of the above, the above the appellant contends an effective date of Veteran's death on September 23, 2010 is warranted, since her previously denied October 2010 claim remained pending due to inadequate notification of the April 2014 SOC. See 38 C.F.R. §§ 3.400(c)(2), 19.30. Although the record reflects that the April 2014 SOC was mailed to her, she contends the presumption of regularity is rebutted by the following: her reports of non-receipt; her April 14, 2014 report to her congressman indicating VA had informed her it would be another eight months before the claim would be processed; the April 28, 2014 response from a Cleveland RO representative to her congressman indicating that a SOC had not been issued; and her June and July 2014 status inquiries to her congressman. See May 2017 NOD and September 2017 substantive appeal. The presumption of administrative regularity allows VA adjudicators to presume officials within the agency have properly discharged their official duties and responsibilities in dealing with claimants and other beneficiaries. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982)); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). This presumption is rebuttable by clear evidence to the contrary. This usually requires more than a mere allegation of defective process or procedure, non receipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999); Kyhn v. Shinseki, 716 F.3d 572, 577 (Fed. Cir. 2013) (noting that application of the presumption of administrative regularity is proper "where the presumption of regularity [is] premised upon independent legal authority"). An example of rebuttal by clear evidence to the contrary would be an incorrect mailing address listed on the correspondence in dispute, in addition to lay reports of non-receipt. Crain v. Principi, 17 Vet. App. 182 (2003). In this particular case, the Board does not find clear evidence to rebut the presumption of regularity in mailing the April 2014 SOC when viewed in context of the entire record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted in weighing evidence); 38 C.F.R. § 19.30; VA Adjudication Procedure Manual M21-1, I.5.D.3.h. (concerning SOC Transmittal Letter Requirements). On its face, the April 2014 SOC does not suggest any processing or mailing irregularity. It clearly provided notice to the appellant about the formal appeal requirements. Moreover, the record indicates that the appellant's address has not changed since April 2014, and listed address on the April 2014 SOC is the same address that is currently of record. VA did not receive any mail returned as undeliverable. These facts heavily weigh against a mailing irregularity. Id. The Board has considered the appellant's assertion that the additional evidence of record constitutes clear evidence to rebut the presumption of regularity in mailing the April 2014 SOC. Specifically, the April 14, 2014 report to her congressman documents that VA informed her to expect to wait another eight months. The April 28, 2014 response by the RO representative indicates that a SOC had not been issued. A record of the appellant's contact with her congressman confirms that she contacted his office in June and July 2014 to inquire about the case. The Board acknowledges that the information provided by the VA representatives was erroneous, and that her June and July 2014 inquires support an inference that she did not have actual receipt of the April 2014 SOC. However, these items of evidence do not constitute clear evidence to rebut the presumption of regularity regarding the mailing of the April 2014 SOC, particularly in light of the above evidence strongly suggesting that the RO followed the regular administrative procedures in creating and mailing the SOC to the appellant's regular address. See VA Adjudication Procedure Manual M21-1, I.5.D.3.h (concerning SOC Transmittal Letter Requirements); 38 C.F.R. §§ 19.29, 19.30; Kyhn, 716 F.3d at 577. It is not clear as why the VA representatives estimated a much longer response time or in the case of the April 28, 2014 response, was unaware of the SOC. There are a number of plausible reasons for their erroneous reports, such as a delay in updating internal claims processing records to include the April 2014 SOC or misunderstanding as to the case backlog. Similarly, the appellant's June and July 2014 inquiries to her congressman do not directly conflict with a finding that the April 2014 SOC was appropriately processed and mailed to her address of record. An inference that she accidentally misplaced or discarded the April 2014 SOC received at her residence would be equally as consistent with her June and July 2014 status inquiries. See Caluza, 7 Vet. App. at 506. In this particular case, the Board does not find clear evidence to rebut the presumption of regularity for mailing the April 2014 SOC when considering the appellant's assertions in light of the entire record. Id. Briefly, the appellant's argument also raises the issue of detrimental reliance from the erroneous information from the RO representative's April 28, 2014 report. The April 28, 2014 response from the RO representative is regrettable. However, the erroneous report from the RO representative cannot be used to toll any timing requirement to complete the appeal. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice given by a government employee cannot be used to stop the government from denying benefits). See also Johnson v. Brown, 9 Vet. App. 369, 377 (1996). For the above-stated reasons, the Board finds that the presumption of regularity applies with respect to the issuance and mailing of the April 2014 SOC. See 38 C.F.R. § 19.30; VA Adjudication Procedure Manual M21-1, I.5.D.3.h; Kyhn, 716 F.3d at 577. As such presumption has not been rebutted, it follows that the appellant was appropriately notified of the April 2014 SOC, but did not respond. Id. As the appellant did not perfect an appeal with respect to the May 2013 denial, and no pertinent exception to finality applies, that decision is deemed to have finally resolved her initial 2010 claim, See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Hence, there was no pending claim, prior to August 18, 2014, pursuant to which the benefit ultimately awarded could have been granted. Accordingly, inasmuch as service connection for the cause of the Veteran's death was ultimately granted pursuant to the appellant's August 2014 request to reopen the claim, the date of receipt of that claim is the earliest possible effective date for the award. See 38 C.F.R. § 3.400(q). The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Under the circumstances presented here, the Board finds that there is no legal basis for assignment of an earlier effective date for service connection for the cause of the Veteran's death. Therefore, the claim on appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than August 18, 2014 for the award of service connection for the cause of the Veteran's death is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs