Citation Nr: 1808678 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-00 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether a Substantive Appeal (VA Form 9 or equivalent) was timely filed regarding the issue of entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. 2. Entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active duty military service from August 1944 to August 1946 and from August 1950 to August 1955. He received the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined that the Veteran had not filed a timely substantive appeal in regard to an earlier decision in January 2014 that denied an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. This matter was before the Board in August 2017, at which time it was remanded for a Board videoconference hearing to be scheduled. The Veteran and his son testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in November 2017. A copy of the transcript has been reviewed and associated with the claims file. The issue of entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO issued a Statement of the Case (SOC) on December 31, 2014, which denied an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. 2. In correspondence dated on February 13, 2015, the Veteran sent a privacy authorization release form and letter to the office of his U.S. Senator. This correspondence was associated with the claims file but did not have a date stamp indicating the date received by the RO. 3. The Board accepts the date of the February 13, 2015, correspondence as indicative of when it was received by RO, which was within sixty (60) days of the issuance of the Statement of the Case (SOC). CONCLUSION OF LAW A timely appeal was received following the issuance of the December 31, 2014, Statement of the Case (SOC). 38 U.S.C. § 5104, 7105 (2012); 38 U.S.C. §§ 3.103, 3.156, 19.32, 20.200, 20.202, 20.300, 20.302, 20.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000). The facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. § 5104 (2012). Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103(f). A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing. 38 C.F.R. § 20.200 (2017). A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever is later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b)(1). If, however, (i) a claimant submits additional evidence within one year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence, in accordance with 38 C.F.R. § 19.31, requires that the claimant be furnished a supplemental statement of the case, then the time to submit a substantive appeal shall end not sooner than 60 days after such supplemental statement of the case is mailed to the claimant, even if the 60-day period extends beyond the expiration of the one-year appeal period. 38 C.F.R. § 20.302(b)(2). Furthermore, an extension of the 60-day period for filing a substantive appeal may be granted for good cause. The request for an extension must be made in writing prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. In the present case, in a January 24, 2014 administrative letter, the RO denied an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. On January 31, 2014, VA received the Veteran's timely notice of disagreement (NOD) and the RO issued a Statement of the Case (SOC) on December 31, 2014. The Veteran subsequently sent a privacy authorization release form to his U.S. Senator's office. The release form was signed on February 13, 2015. The Veteran also submitted a letter to his U.S. Senator's Office, which was dated on February 14, 2015. The February 13 and 14, 2015, letters state the Veteran's disagreement with the RO's decision and request retroactive compensation from March 2003 to March 2011 for the additional amount payable for the Veteran's spouse. These documents were uploaded to the Veteran's claims file. However, there is no date stamp or post-mark to indicate when these documents were received by the RO. Given that the February 13 and 14, 2015, letters indicate the Veteran's specific argument relating to the SOC issued in December 2014, the Board finds these letters contain the necessary information to be deemed a timely Substantive Appeal, or equivalent to a Form 9. See 38 C.F.R. § 20.202. Furthermore, the Board is unable to unequivocally determine when the RO received the February 13 and 14, 2015, letters to the U.S. Senator's office. Accordingly, the Board will use the date on the letters as the date of receipt and has determined that they were received by the RO within sixty (60) days of the issuance of the December 31, 2014, SOC. In light of the foregoing, the Board finds that a timely substantive appeal was filed and the appeal is granted. ORDER The appeal as to the issue of timeliness of the substantive appeal is granted. REMAND In this decision, the Board has reopened the claim of entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S., and finds that additional development is necessary. The appellate process set forth in 38 U.S.C. § 7104(a) (2012) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or in a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31(b) (2017). In the present case, a Statement of the Case (SOC) was issued in December 2014. Subsequently, additional evidence was received, including additional argument, with regard to the issue of entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. The AOJ did not prepare a Supplemental Statement of the Case (SSOC) considering this newly received evidence as the issue turned to the timeliness of the substantive appeal. Furthermore, the Veteran has not waived initial AOJ consideration of the evidence submitted. Accordingly, a remand is required for issuance of an appropriate SSOC. Accordingly, the case is REMANDED for the following action: Readjudicate the merits of the issue on appeal - entitlement to an earlier effective date for the additional amount payable for the Veteran's dependent spouse, J.S. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a SSOC and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. §§ 5109B, 7112 (2012). ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs