Citation Nr: 1800353 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-18 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether a Substantive Appeal (VA Form 9 or equivalent) was timely filed in response to a July 2010 Statement of the Case (SOC) denying the appellant's claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Tara R. Goffney, Attorney at Law ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to May 1991; he died in May 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision and a November 2010 administrative decision issued by the Department of Veterans Affairs (VA), Atlanta, Georgia Regional Office (RO). In a November 2014 decision, the Board denied the issue of the timeliness of the Veteran's substantive appeal and dismissed the appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court reversed the November 2014 Board decision and remanded to the Board for action consistent with the Court's decision. This appeal is now before the Board. The Board notes that it is in receipt of correspondence from the appellant, dated October 2017, indicating that she is withdrawing her request for a hearing. In evaluating this case, the Board has reviewed the physical claim file, as well as the electronic file on the Virtual VA and VBMS systems to ensure a complete assessment of the evidence. The appellant, through her attorney, stated in argument presented July 2017, that the Veteran submitted a new claim for diabetes in a July 2007 notice of disagreement (NOD). The correspondence referenced contains the following language from the Veteran: "I am still under the care of my oncologist and primary care physician for Non Hodgkin's Lymphoma, fatigue, diabetes, severe head and neck pain." The Board finds that this language does not indicate intent by the Veteran to file a claim for diabetes. Therefore, it will not refer this claim to the Agency of Original Jurisdiction (AOJ) for further development. The issue of entitlement to accrued benefits was raised by the appellant in her initial May 2008 application for death benefits. In the October 2008 rating decision, the RO adjudicated accrued benefits, but only as they pertained to service connection for posttraumatic stress disorder (PTSD). However, the record reflects that the Veteran, while alive, filed a timely NOD to a December 2006 rating decision, which denied: (1) service connection for lymphoma; (2) service connection for discolored skin on head; (3) service connection for headaches with nosebleeds because no new and material evidence was submitted; and (4) nonservice-connection pension. (See correspondence received, with signature, August 2007). (The AOJ never submitted a statement of the case (SOC) as to these issues.) Because the RO has yet to issue a rating decision on the issue of entitlement to accrued benefits that considers these claims, the Board does not have jurisdiction, and the issue is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). The issue of entitlement to service connection for cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In an October 2008 rating decision, the RO denied a claim of service connection for cause of death. 2. The appellant disagreed with the rating decision and the RO issued an SOC in July 2010. 3. The July 2010 the SOC was not received by the appellant until September 2010, on the date she signed her VA Form 9, indicating her intent to appeal the issue of entitlement to service connection for cause of death. CONCLUSION OF LAW The appellant's substantive appeal, received by VA on October 28, 2010, is timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302, 20.303, 20.305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.4, 20.101. Appellate review is initiated by the timely filing of a NOD, and is completed by the timely filing of a substantive appeal after a SOC has been furnished. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. A decision as to the timeliness and adequacy of a substantive appeal will be made by the Board. 38 U.S.C. § 7108; 38 C.F.R. § 20.101 (c), (d). The substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. 38 C.F.R. § 20.302 (b). The date of mailing of the SOC will be presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. The Court has held that the filing period for a substantive appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Furthermore, the Court has held that, as with the timeliness of a substantive appeal, in determining the adequacy of a substantive appeal, "the Board's use of a jurisdictional, i.e., nondiscretionary, analysis [is] not appropriate," and that VA may waive "any ... pleading requirements on the part of the appellant." Id. at 47, citing Gomez v. Principi, 17 Vet. App. 369, 372-73 (2003). By way of history, in November 2008, the RO received the Veteran's NOD with the October 2008 rating decision which denied service connection for cause of death. An SOC was issued in July 2010. The cover letter accompanying the July 2010 SOC was addressed to the Veteran, rather than to the appellant. The last page of the appellant's VA Form 9 indicates that she signed and dated the form on September 2, 2010, and that it was received by the RO on October 28, 2010. The VA Form 9 also includes a handwritten note containing the Veteran's Social Security number and noting that the VA Form 9 was not timely submitted. On November 4, 2010, the RO informed the appellant that her VA Form 9 was not timely filed within the 60-day appeal period and, therefore, it could not be accepted. The appellant appealed this decision. In June 2012, the RO issued an SOC regarding the matter of the timeliness of the VA Form 9. In March 2013, the Board remanded the matter in order for the appellant to be provided with a hearing. In the November 2014, the Board determined that the appellant had not submitted a timely Substantive Appeal in response to the July 2010 SOC. The "Court has recognized that 'there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties.'" Sthele v. Principi, 19 Vet.App. 11, 16 (2004) (quoting Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992)). This presumption is not absolute and may be rebutted by showing with clear evidence that VA's "regular mailing practices were not regular or were not followed." Sthele, 19 Vet.App. at 17 (citation omitted). An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet.App. 98, 102 (1998). "Instead, the clear evidence requirement mandates not only a declaration by the appellant of nonreceipt, but additional evidence to corroborate the appellant's declaration such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet.App. 130, 133-34 (2007); see Santoro v. Principi, 274F.3d 1366, 1370 (Fed. Cir. 2001) ("The purpose of an address is to supply information for delivery of mail to its intended destination[,] [and] [h]ence, an address containing errors inconsequential to delivery is still proper.")). Once the presumption is rebutted, the burden shifts to the Secretary to demonstrate a proper mailing or actual receipt of the SOC, after which the 60-day period to submit the Substantive Appeal will begin to run. See Sthele, 19 Vet.App. at 17; Davis v. Principi, 17 Vet.App. 29, 37 (2003) ("any defect in the mailing process may be cured by proof of actual receipt of the decision by the appellant," at which point the period to file a Substantive Appeal begins to run). The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v Brown, 8 Vet. App. 469, 472 (1996). In its December 2016 decision, the Court found that in the instant case, VA used the incorrect name on the address when attempting to mail the July 2010 SOC to the appellant and this was an error consequential to delivery that rebuts the presumption of regularity. Further, the Court found that the Secretary did not meet his burden to demonstrate a proper mailing or actual receipt of the mail in question. See Sthele, 19 Vet.App. at 17; Davis, 7 Vet.App.at 37. Because of the mailing error, the Court found that the record shows that the appellant actually received the July 2010 SOC as of September 2, 2010, the date that she signed her VA Form 9. Therefore, the 60-day period for filing a Substantive Appeal with the Board under 38 U.S.C. § 7105(d)(3) was tolled and did not begin to run again until the defect was cured on September 2, 2010, the earliest date on which the record shows the appellant actually received the July 2010 SOC. See Crain v. Principi, 17 Vet.App. 182, 194 (2003) (holding "that the 60 day period for filing a Substantive Appeal with the Board under section 7105(d)(3) was tolled and did not begin to run again until the defect was cured on June 19, 2000, by the RO's mailing a copy of the SOC to the appellant at her correct address"). Because the record shows that VA received the VA Form 9 on October 28, 2010, which was within 60 days after the appellant's actual receipt of the SOC on September 2, 2010, her Substantive Appeal to the Board was timely filed. As such, in compliance with the law of case, the appeal as to timeliness is granted. ORDER The appeal to establish that the appellant timely filed a substantive appeal with the October 2008 rating decision that denied the issue of entitlement to service connection for cause of death, is granted, and to that extent only, the appeal is granted. REMAND Given the above finding that there was a timely filed substantive appeal to the October 2008 rating decision that denied the issue of entitlement to service connection for cause of death, the Board turns to the underlying claim. A claim for death pension, compensation, or dependency and indemnity compensation by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.152 (b)(1), 3.1000(c). As discussed briefly in the Introduction section above, the record reflects that the Veteran, while alive, filed a timely NOD to a December 2006 rating decision, which denied: (1) service connection for lymphoma; (2) service connection for discolored skin on head; (3) service connection for headaches with nosebleeds because no new and material evidence was submitted; and (4) nonservice-connection pension. In its October 2008 rating decision, the RO failed to address these issues. To date, these issues have yet to be adjudicated in the first instance, and the Board has referred it to the AOJ for initial adjudication. Because the accrued benefits service connection claim is being referred to the AOJ for adjudication, development on that claim could affect the outcome of the appellant's claim of entitlement to service connection for the cause of the Veteran's death (the issues concern overlapping contentions and disabilities). For that reason, the Board finds that the cause of death claim is inextricably intertwined with the pending accrued benefits claim. Thus, a decision on the cause of death claim will be deferred pending adjudication of the accrued benefits service connection claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the appellant, through her attorney, stated in argument presented July 2017, that the Veteran had CT scans in August 1995, October 1996, and November 1996, but they are not of record. The Board will remand to allow an opportunity to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records identified by the appellant's attorney in argument presented July 2017, specifically, CT scans from August 1995, October 1996, and November 1996. All attempts to locate these treatment records should be noted in the claim file. 2. After completing the above and any other needed development, the AOJ must adjudicate the appellant's claims for accrued benefits and for cause of the Veteran's death. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs