Citation Nr: 18146083 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-50 356 DATE: October 30, 2018 ORDER An effective date of September 1, 2010 for the award of dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 2010. 2. VA received the appellant’s claim for DIC benefits based on service connection for the cause of the Veteran’s death in October 2010. 3. Service connection for the cause of the Veteran’s death was initially denied in a March 2011 rating decision because the appellant had not submitted sufficient information regarding the Veteran’s marital history. 4. In the one-year appellate period following the March 2011 rating decision, the appellant submitted new and material evidence in the form of a divorce decree pertaining to the Veteran’s prior marriage, and a properly completed VA Form 21-686c, Declaration of Status of Dependents. 5. A May 2013 rating decision reopened and again denied the claim for service connection for the cause of the Veteran’s death; the appellant submitted a timely Notice of Disagreement (NOD) in July 2013. 6. The appellant did not receive the April 2014 statement of the case (SOC), and thus was unaware of the requirements and timeline for perfecting the appeal. 7. An August 2016 rating decision granted service connection for the cause of the Veteran’s death effective August 18, 2014, the date of the appellant’s new claim. CONCLUSIONS OF LAW 1. The March 2011 and May 2013 rating decisions were not final at the time of the August 2016 rating decision granting service connection for the cause of the Veteran’s death. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.24, 19.29, 19.30 (2017). 2. The criteria for an effective date of September 1, 2010 for the award of DIC benefits based on service connection for the cause of the Veteran’s death are satisfied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1951 to January 1953. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2017 decision, the Board denied an earlier effective date for the award of DIC benefits based on service connection for the cause of the Veteran’s death. In a July 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR), and vacated the Board’s November 2017 decision. The Court remanded the case to the Board for further action consistent with the terms of the joint motion. 1. An effective date of September 1, 2010 for the award of service connection for the cause of the Veteran's death is granted. The Board finds that the appellant has continuously prosecuted her claim for DIC benefits since her original October 2010 application (VA Form 21-534). Hence, an effective date of September 1, 2010 for the award of DIC benefits is warranted, which is the first day of the month in which the Veteran died. See 38 C.F.R. § 3.400(c)(2). The appellant submitted a claim for service connection for the cause of the Veteran’s death in October 2010. The claim was denied in a March 2011 rating decision. In the March 2011 notification letter, VA informed the appellant that the claim was denied because VA had not received sufficient evidence to recognize her as the surviving spouse of the Veteran. The letter went on to state that the appellant had not submitted the Veteran’s complete marital history in the VA Form 21-686c, Declaration of Status of Dependents, or, in the alternative, a statement that at the time she married the Veteran she was unaware of any legal impediments to the marriage, in accordance with VA’s instructions in a December 2010 letter. A few weeks later, still in March 2011, the appellant submitted a copy of the divorce decree pertaining to the Veteran’s prior marriage. In October 2011, she submitted a copy of the marriage certificate reflecting her marriage to the Veteran. The RO then sent a November 2011 letter that administratively denied reopening the claim because the appellant had not submitted the completed Declaration of Status of Dependents Form. She submitted the completed form in January 2012. The Board finds that the additional evidence submitted by the appellant regarding the Veteran’s marital history, including the January 2012 Declaration of Status of Dependents, constituted “new and material” evidence. See 38 C.F.R. § 3.156(a). VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers, and “material evidence” as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. Because the March 2011 letter notified the appellant that her claim was denied because she has not submitted sufficient evidence of the Veteran’s marital history in the form requested by VA, the completed January 2012 Declaration of Status of Dependents, as well as the divorced decree and marriage certificate furnished by the appellant, qualified as new and material evidence. See id. If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). Accordingly, the appellant’s submission of new and material evidence within one year of the March 2011 rating decision rendered that decision nonfinal. There has been no subsequent final denial of the claim. A May 2013 rating decision reopened and again denied the appellant’s claim for service connection for the cause of the Veteran’s death. For the following reasons, the Board finds that this decision was not final at the time of the August 2016 rating decision granting the claim. The appellant initiated an appeal of the May 2013 decision by submitting a timely notice of disagreement (NOD), in July 2013. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). Once a NOD has been submitted, if the claim continues to be denied the RO must furnish the appellant with a Statement of the Case (SOC) with notification of the requirements for perfecting the appeal. 38 C.F.R. §§ 19.24, 19.29, 19.30 (2017). The record shows that the RO issued an SOC in April 2014 with a cover letter reflecting that it was sent to the appellant’s correct mailing address. However, the Board finds that the appellant has provided probative evidence that she never received the SOC. In this regard, when there is documentation indicating that notice was sent to the claimant’s correct address, then under the presumption of regularity in the administrative process it will be presumed that VA properly discharged its official duties and that the notice was mailed to and received by the claimant. Boyd v. McDonald, 27 Vet. App. 63, 71-72 (August 2014) ((citing Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007)); see Rios v. Mansfield, 21 Vet. App. 481, 482 (2007); see also United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption may only be rebutted with “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). While there is no indication that VA’s mailing process was irregular with respect to sending the April 2014 SOC to the appellant, there is credible and probative evidence showing that the appellant nevertheless did not receive it. Specifically, the record shows that on April 14, 2014, several days after mailing of the April 2014 SOC, 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 16, 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 that according to VA’s electronic records, the appellant’s NOD was being reviewed by the appeals section. The representative 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, who informed her of the 90-day follow-up period provided by the VA representative. In August 2014, a representative from the Cleveland RO informed the congressman’s office that VA sent the appellant an SOC in April 2014, and that VA had not received a response from her. In September 2014, a VA representative informed the congressman’s office that the appeal was closed due to the appellant’s failure to respond to the SOC. According to internal “workflow” notes from the congressman’s office that were furnished to VA, a September 2014 notation reflects that the appellant stated that she never received the SOC. The congressman’s notes further reflect that the appellant was advised to file a new claim rather than appeal VA’s closing of the case due to not receiving a response within 60 days of mailing of the SOC. The Board finds that the communications between the appellant and her congressman’s office constitute credible and probative evidence that she never received the April 2014 SOC. They show that during the 60-day period following the April 2014 SOC, she repeatedly contacted her congressman for information and help regarding the case, and that upon learning that her case had been closed by VA due to her failure to respond to the SOC, she stated that she never received it. It is obvious from these communications that the appellant was unaware of the SOC, and that she had every intention of continuing the appeal. The fact that she submitted a new claim in August 2014, just a few months after the April 2014 SOC, further confirms that she intended to pursue the appeal. (As noted above, she was advised to submit a new claim rather than an appeal on learning that her prior claim had been closed.) The Board also observes that the RO received the first congressional inquiries during the 60-day window following mailing of the SOC. It should have inferred from such inquiries that the appellant did not receive the SOC, and simply mailed her another copy with a new 60-day window for perfecting the appeal, or at least contacted her to clarify whether she had in fact received it. Accordingly, there is clear evidence rebutting the presumption that the appellant received the April 2014 SOC. See Schoolman v. West, 12 Vet. App. at 310. Because the appellant did not receive the April 2014 SOC, the 60-day period for filing a substantive appeal from the date of that SOC never began. See Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006) (holding that the time period for filing a substantive appeal may be equitably tolled); cf. Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009) (holding that an untimely substantive appeal is not a jurisdictional bar to Board review of a claim). Consequently, the May 2013 rating decision was not final at the time of the August 2016 rating decision granting DIC benefits, as there was still a pending NOD with respect to the prior decision. Because neither the May 2013 rating decision nor the March 2011 rating decision was final at the time of the August 2016 rating decision, that decision relates back to the appellant’s October 2010 claim. The Board notes that the parties to the JMR discussed the cases of Mitchell v. Mcdonald, 27 Vet. App. 431, 436 (2015) and Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) in instructing the Board to readjudicate the finality of the March 2011 rating decision. These cases apply when there is a final decision that ordinarily would extinguish a prior pending claim for the same benefit adjudicated in a prior decision, but for the operation of section 3.156(b). Because the Board finds that the March 2013 rating decision was not final, the holdings in Mitchell and Beraud do not apply, as there was no final rating decision subsequent to the March 2011 denial of the appellant’s October 2010 claim. When a claim for service-connected death benefits is filed within one year after the date of the veteran’s death, the effective date of the award is the first day of the month in which the veteran’s death occurred. 38 C.F.R. § 3.400(c)(2). The record shows that the Veteran died in September 2010. Because the appellant’s October 2010 claim was submitted within one year of that date, an effective date of September 1, 2010 for the award of service connection for the cause of the Veteran’s death is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel