Citation Nr: 21001542 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-06 459 DATE: January 8, 2021 ORDER Entitlement to an effective date of December 13, 2002, and no earlier, is granted for the award of dependency and indemnity compensation (DIC) for service connection for the cause of the Veteran’s death. REMANDED Entitlement to additional DIC and accrued benefits for the appellant’s children is remanded. FINDINGS OF FACT 1. A January 2003 Board decision denied the appellant’s original claim for entitlement to DIC for service connection for the cause of the Veteran’s death. 2. The appellant’s December 13, 2002 petition to reopen the claim for entitlement to DIC for service connection for the cause of the Veteran’s death was denied in a March 2003 rating decision; however, the petition remained pending because new and material evidence as to the issue was received in October 2003. 3. A December 2003 rating decision reconsidered the petition to reopen the previously denied claim in consideration of the evidence received in October 2003. 4. The presumption of regularity as to the mailing of the December 2003 rating decision is rebutted and the March 2003 rating decision did not become final; therefore, the December 13, 2002 petition to reopen the previously denied claim remained pending until a June 2007 rating decision was issued as to the petition. 5. The appellant continuously prosecuted an appeal of the June 2007 rating decision until a rating decision granting entitlement to DIC for service connection for the cause of the Veteran’s death was issued in September 2015. CONCLUSIONS OF LAW 1. The January 2003 Board decision is final as to the appellant’s original claim for entitlement to DIC for service connection for the cause of the Veteran’s death. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The criteria for entitlement to an effective date of December 13, 2002, and no earlier, for the award of DIC for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.156(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Philippine Commonwealth Army and the recognized Philippine guerilla forces from May 1945 to June 1946. He died in October 1999. The appellant is his surviving spouse. In March 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the appellant nor her representative has raised any issues with regard to the duty to notify or duty to assist in this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show. The appellant should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to an effective date earlier than March 22, 2007, for the award of DIC for service connection for the cause of the Veteran’s death The appellant seeks an effective date earlier than March 22, 2007, for entitlement to DIC for service connection for the cause of the Veteran’s death. She contends that she informed VA of a new address in October 2003, that she never received notice of a December 2003 rating decision denying her petition to reopen a previously denied claim because it was sent to her old address, and that she is therefore entitled to an effective date for the award of that benefit based on the petition to reopen. The effective date for an award of compensation based on a reopened claim will be the date of receipt of the petition to reopen the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). Rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100. However, if new and material evidence is received during the one-year appellate period following a rating decision, that evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In such instances, the claim will remain pending until it is reconsidered in view of the new and material evidence. Turning to the evidence of record, the Veteran’s death certificate indicates that he died in October 1999. In December 1999, the appellant submitted her original claim for entitlement to DIC for service connection for the cause of the Veteran’s death. The Agency of Original Jurisdiction (AOJ) denied that claim in a June 2000 rating decision, and the appellant appealed the June 2000 rating decision by submitting a timely notice of disagreement as to the issue. Following issuance of a statement of the case as to the issue in August 2001, the appellant perfected an appeal to the Board by submitting a substantive appeal that was accepted as timely. In January 2003, the Board issued a decision denying the appellant’s original claim for entitlement to DIC for service connection for the cause of the Veteran’s death. The appellant has not filed a motion for reconsideration of the January 2003 Board decision, nor has such reconsideration been ordered by the Chairman of the Board. The appellant also did not appeal the decision to the United States Court of Appeals for Veterans Claims within the prescribed period of time. Accordingly, the January 2003 Board decision is final as to the appellant’s original claim for entitlement to DIC for service connection for the cause of the Veteran’s death. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Therefore, the original December 1999 claim cannot serve as the basis for an earlier effective date for the award of DIC for service connection for the cause of the Veteran’s death. On December 13, 2002, VA received from the appellant a VA Form 21-4138, Statement in Support of Claim, stating “I want to re-open my claim for widow’s DIC.” Although the appellant’s original claim was still pending before the Board at that time, the AOJ accepted the statement as a valid petition to reopen. The AOJ denied that petition in the March 2003 rating decision. However, in October 2003, within the one-year appeal period for the March 2003 rating decision, the appellant submitted a VA Form 21-4138 completed by S. P., M.D., stating that the Veteran was treated several weeks before he died for a severe circulatory problem caused by his service-connected disabilities and that those problems “ultimately took his life.” That statement constitutes new and material evidence as to the petition to reopen the previously denied claim for entitlement to DIC for service connection for the cause of the Veteran’s death because it was not previously considered by VA and because it related to an unestablished fact necessary to substantiate the petition and raised a reasonable possibility substantiating that petition. See 38 C.F.R. § 3.156(a). Therefore, the December 13, 2002 petition to reopen the previously denied claim remained pending, and would continue in that status until reconsidered in view of the new and material evidence. 38 C.F.R. § 3.156(b). Also in October 2003, VA received notification from the appellant that she had a new address and wanted all correspondence to be sent to that new address. The AOJ reconsidered the appellant’s petition to reopen the previously denied claim for entitlement to DIC for service connection for the cause of the Veteran’s death in December 2003, again denying the petition. However, the letter notifying the appellant of that decision shows that the decision was sent to the appellant’s old address and not to the updated address VA was notified of in October 2003. Thereafter, on March 22, 2007, VA received from the appellant a statement referencing the March 26, 2003 notification letter for the March 2003 rating decision. The AOJ interpreted that statement as a petition to reopen the previously denied claim, and denied that petition in the June 2007 rating decision. The appellant initiated an appeal as to that decision by filing a timely notice of disagreement. She continuously prosecuted that appeal until the September 2015 rating decision, which is the decision currently on appeal, granted her entitlement to DIC for service connection for the cause of the Veteran’s death. Under the provisions of 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement filed by the appellant. Generally, a notice of disagreement shall be filed within one year from the date of the mailing of notice of decision of the AOJ. 38 U.S.C. § 7105(b)(1)(A). There is a presumption of regularity of the administrative process when there is a lack of clear evidence to the contrary. Mindenhall v. Brown, 7 Vet. App. 271 (1994). The administrative process includes the mailing of VA decisions. A claimant may rebut the presumption of regularity by submitting “clear evidence to the effect that VA’s regular mailing practices are not regular or that they were not followed. The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant.” Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). In this case, the record clearly shows that VA received from the appellant in October 2003 a notice of a change in address, but that the December 2003 rating decision was nevertheless sent to the appellant’s prior address. The appellant has indicated that she never received the December 2003 rating decision. The appellant’s March 2007 statement supports her assertions, as it references the March 2003 rating decision and not the December 2003. The appellant also testified at the March 2020 Board hearing that she was not on good terms with her former roommates when she moved in 2003 and that she did not seek mail forwarding services after she moved. Such circumstances support her assertions that she never received the December 2003 rating decision and provide an explanation for why that decision was not returned to VA as undeliverable. In view of the foregoing, the Board finds that the presumption of regularity as to the mailing of the December 2003 rating decision is rebutted. Accordingly, the December 13, 2002 petition to reopen the previously denied claim remained pending until the June 2007 rating decision was issued reconsidering that petition in view of the evidence received in October 2003. The appellant continuously prosecuted an appeal of the June 2007 rating decision until the September 2015 rating decision granted entitlement to DIC for service connection for the cause of the Veteran’s death. Therefore, the appropriate effective date for the award of that benefit is December 13, 2002, the date VA received the appellant’s petition to reopen the previously denied claim. See 38 C.F.R. § 3.400(r). In summary, the appellant’s original claim for entitlement to DIC for service connection for the cause of the Veteran’s death was denied in the final January 2003 Board decision and therefore cannot serve as the basis for an earlier effective date for the grant of that benefit. Her December 13, 2002 petition to reopen that claim remained pending until the September 2015 rating decision granted the claim. Therefore, the December 13, 2002 petition serves as the basis for the grant of the benefit, and an effective date of December 13, 2002, is warranted. To the extent that the appellant seeks an effective date earlier than December 13, 2002, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to additional DIC and accrued benefits for the appellant’s children is remanded. The appellant submitted a timely VA Form 21-0958, Notice of Disagreement, expressing disagreement with an August 2018 administrative decision that denied entitlement to additional DIC and accrued benefits for the her children. However, a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the appellant and her representative a statement of the case that addresses the issue entitlement to additional DIC and accrued benefits for the appellant’s children. If the appellant perfects an appeal of the issue, it should be returned to the Board for further appellate consideration. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.