Citation Nr: 21004236 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-07 819 DATE: January 26, 2021 ORDER The appeal as to the timeliness of a Notice of Disagreement (NOD) to initial an appeal of a January 2016 rating decision, which granted an effective date from December 26, 2007, for Dependency and Indemnity Compensation (DIC) and Dependents' Educational Assistance (DEA), is denied. FINDING OF FACT 1. The appellant was notified by RO letter of February 29, 2016, of a January 25, 2016 rating decision granting earlier effective dates, as of December 26, 2007 for DIC and DEA benefits and that if she disagreed she had one year within which to initiate an appeal. 2. The appellant’s NOD was received on November 28, 2017, as to the January 25, 2016, rating decision. 3. Despite uncorroborated allegations of illness, the appellant has not demonstrated good cause for not filing a timely NOD. CONCLUSION OF LAW A timely appeal was not initiated from a January 25, 2016 decision granting earlier effective dates, as of December 26, 2007 for DIC and DEA benefits and that decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.150(a), 20.302(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1963 to March 1967. His DD 214 reflects that he had over one year of foreign and/or sea service. He military decorations include the Vietnam Service Medal. He passed away in January 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 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) (West 2014). Whether the NOD received on November 28, 2017, is a timely appeal of a January 2016 rating decision, which granted an effective of December 26, 2007, and no earlier, for the awards of DIC and DEA. The appellant contends that an effective date from the date of the Veteran’s death is warranted for the awards of DIC and DEA. The Board concludes that a timely NOD was not received as to the January 2016 rating decision. Effective March 24, 2015, VA amended its adjudication regulations to require claimants to submit claims for benefits administered under VA laws on forms prescribed by the agency. See 79 Fed. Reg. 57660, Standard Claims and Appeals Forms (Sept. 25, 2014). However, prior to such amendments, 38 C.F.R. § 3.155 provided that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim "must identify the benefit sought." 38 C.F.R. § 3.1(p) defined application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. Thus, the question before the Board is whether a timely NOD was received within one year from the January 2016 rating decision and if so, whether the evidence supports an earlier effective date prior to December 26, 2007, for the awards of DIC and DEA. An appeal consists of a timely filed NOD in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 19.2(c) (formerly 20.200). Except in the case of simultaneously-contested claims, a claimant or his or her representative must file a NOD with a determination by the Agency of Original Jurisdiction (AOJ) within one year of the date the AOJ mails notice of that determination to him or her. Otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. §§ 19.21, 19.24. If a NOD is not filed within the one-year period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.1103. An untimely filed NOD is a jurisdictional bar to appellate consideration, and is a matter that may not be waived. Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). By way of background, in this case, a death certificate reflects that the Veteran died on January [REDACTED], 1981 due to arteriosclerotic cardiovascular disease. The appellant, the Veteran’s surviving spouse, applied for burial benefits later in 1981, which were paid to a funeral home in May 1981, and in November 1981 VA reimbursed her for headstone or marker expenses. An April 3, 2014 Report of Contact reflects that the appellant called the RO and expressed a desire to claim service connection for the cause of the Veteran’s death, stemming from illness due to Agent Orange. That Report of Contact reflects that a letter was sent that same date, along with VA Form 21-534EZ and she was told that this form had to be received within one year to preserve her “Date of Claim.” The RO letter to the appellant acknowledged receipt of an informal claim for benefits. She was requested to execute and return an enclosed formal claim and notified that if it was received within one year of the letter, and it was ultimately determined that she was entitled to benefits, such benefits could be paid from the date of her informal claim. VA received on April 18, 2014, VA Form 21-530, Application for Burial Benefits, with attachments concerning the Veteran’s funeral and burial expenses. Also VA received on April 18, 2014, VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits. In that form the appellant acknowledged that she was claiming Dependency and Indemnity Compensation (DIC). An April 28, 2014 rating decision granted service connection for the cause of the Veteran’s death (DIC) and also basic eligibility for Dependents’ Educational Assistance (DEA) benefits, effective April 18, 2013, one year prior to the date of claim [on April 18, 2014], based on liberalizing law. That rating acknowledged that the Veteran had “in-country service in the Republic of Vietnam” and was exposed to Agent Orange, and died of arteriosclerotic cardiovascular disease, which was a form of “ischemic heart disease” that is presumptively due to inservice herbicide exposure. The appellant was notified of that decision by RO letter of May 1, 2014, and she was informed that if she disagreed, she had one year within which to appeal the decision. A November 7, 2014, Report of Contact shows that the appellant called and requested to “file a claim for reconsideration for effective date” and reported that “the original claim was lost by VA, and she has evidence to submit that proves the prior submission.” Received that same day was a handwritten letter from the appellant stating that she had been told that VA had not received her original claim for DIC, and she had had to begin the application process all over again. However, she had recently found paperwork she had submitted in 2009 (to VA) and this submission to VA had been after she had received such paperwork in 2008 consisting of military records. Attached were records including a request for military records bearing her signature and dated in April 2007, as well as a December 2008 letter from the National Personnel Records Center acknowledging her request for military records of her husband. Also enclosed, and stamped as received on November 7, 2014, was a copy of VA Form 21-534, bearing her signature and dated February 20, 2009. However, it does not bear any date stamp reflecting receipt prior to November 7, 2014. In letter dated November 28, 2014, VA notified the appellant that: [Her] request for an earlier effective date to your Dependency and Indemnity Compensation (DIC) award received on November 7, 2014. We have reviewed your, and the veteran’s, entire claims file. There is no evidence of record to show that we received a request for benefits prior to your informal claim made by phone on April 3, 2014. Therefore, we cannot approve your request for an earlier effective date. We cannot accept the date that you signed an application as proof evidence or a claim was received by the VA. If you have any evidence, such as a VA date stamp, fax confirmation sheet, or a priority package confirmation from USP or any other delivery system, please submit the evidence to us and we will reconsider our decision. She was informed that she had one year within which to appeal this decision. By letter received on December 12, 2014, the appellant stated that in April 2007 she executed an application for her husband’s military records, which she received in December 2008. She then filed an application with VA for DIC benefits in February 2009. When she had not heard from VA but after eventually calling was told that VA had not received any such claim. Thus, in 2013 she again filed a claim for DIC benefits. She then contacted the National Personnel Records Center in January 2014, and received military records of her husband in February 2014, and then filed another DIC claim with VA, which was approved in April 2014. Subsequently, she found the original claim and faxed it to the RO on November 7, 2014. She was informed by RO letter dated November 28, 2014, that her claim for an earlier effective date was denied. She now desired to have the effective date for her award of DIC adjusted. A December 17, 2014, VA letter notified the appellant that her Notice of Disagreement (NOD) with the November 2014 decision had been received. In January 2015 the appellant elected to participate in the Decision Review Officer Process (although that election form was dated January 5, 2014). On January 26, 2015, the appellant submitted a copy of a December 12, 2008 letter from the National Personnel Records Center acknowledging her request for military records pertaining to her husband, as well as military personnel records of her husband verifying his service in Vietnam. Based on information provided by the Social Security Administration (SSA), a July 2015 Report of Contact reflects that the appellant first applied for SSA death benefits in January 1981, which was denied because she was working. She began receiving SSA death benefits in December 26, 2007. A January 25, 2016, rating decision granted an earlier effective date for DIC and DEA benefits as of December 26, 2007, because following her timely appeal of the April 2014 grant of DIC and DEA additional information had been obtained from SSA and that: 38 C.F.R. § 3.153 states, in part: "An application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration." The Social Security Administration (SSA) has informed us that you applied for benefits with them on December 26, 2007. In keeping with the regulation cited above, an effective date of December 26, 2007, is granted. A February 29, 2016, VA letter notified informed the appellant of the grants of earlier effective dates, as of December 26, 2007, for DIC and DEA benefits. She was informed that if she disagreed, she had one year within which to file a NOD initiating an appeal. Enclosed was VA Form 4107 informing her of her appellate rights. VA received on February 10, 2016, VA Form 21-8942, Application of Surviving Spouse or child for REPS benefits. In April 2017 the appellant wrote to request that her February 2016 claim be expedited. On September 6, 2017, the RO received a faxed VA Form 21-8942, Application of Surviving Spouse or child for REPS benefits. By letter of September 8, 2017, the RO informed the appellant that a claim for “REPS” had to be done on a signed, and returned, VA Form 21-8924, Application of Surviving spouse or child for REPS Benefits (Restored Entitlement Program for Survivors) and no further action would be taken until the RO received the completed application. VA received on November 28, 2017 VA Form 21-0958, NOD, as to the February 2016 notice of the of the grants of earlier effective dates, as of December 26, 2007 for DIC benefits. A December 5, 2017, VA letter notified the appellant that the RO had received the November 28, 2017 NOD, but that the period in which to appeal that effective date set by the January 2016 rating had begun with the mailing of the notification letter, which was February 29, 2016. The NOD was received on November 28, 2017, which was past the time limit. Therefore, the appeal was not timely. In November 2018, the appellant filed VA Form 21-0958, NOD, as to the December 2017 determination of the untimeliness of her attempt to appeal the effective date of December 26, 2007, of which she was notified by RO letter of February 29, 2016. On that form she indicated that she believed that the grant should have been effective retroactively to the date of the death of the Veteran, her husband. Also, she reported that she had not initiated an appeal due to illness. Having carefully reviewed the evidence, the Board finds that a timely NOD was not received following notification of the January 2016 rating decision. A claimant has one year following notification of an adverse adjudication within which to initiate an appeal; otherwise, that decision is final in the absence of clear and unmistakable error. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.150(a), 19.24 (formerly 20.302(a)). Here, it is undisputed that the January 2016 rating decision granted an earlier effective date of December 26, 2007, for grants of DIC and DEA. It is also undisputed that the appellant was notified of that decision by RO letter of February 29, 2016, but that she did not file a NOD until November 28, 2017, more than one year after the February 29, 2016 notification. The appellant has made only vague allegations of “illness” as being the cause of not filing a NOD within one year of the February 2016 notification. However, the record shows that prior to and after that one-year period she actively and cogently corresponded with the RO and did not mention any illness which might impair her ability to properly pursue an appeal after the February 2016 notification. She had not otherwise offered anything, including a detailed description of her illness, suggesting that she was mentally or so physically impaired or disabled as to be unable to initiate an appeal. Good cause for failure to complete a NOD is not shown. The appellant has continued to express her belief that DIC and DEA benefits should have been made retroactive to the date of the death of the Veteran and repeats that she filed a claim for DIC benefits in 2009 which was not acknowledged by VA. However, he died in 1981 and there is nothing in the record which shows that she filed a claim for anything other than funeral and burial expenses prior to 2014. In this regard, she has submitted, in November 2014, a copy of VA Form 21-534, bearing her signature and dated February 20, 2009. However, it does not bear any date stamp reflecting receipt prior to November 7, 2014. In other words, she may have executed such a document in 2009 but that does not establish that she mailed it to the RO. These factually driven arguments fail to rise to the level of allegations of clear and unmistakable error (CUE) in the effective date set by the January 25, 2016, decision. See generally, Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.). Additionally, the Board observes that the current effective date of December 26, 2007 for both DIC and DEA benefits pre-dates the VA Form 21-534, a copy of which bears her signature and a date of February 20, 2009, even though it bears no date stamp as having been received by VA. More to the point, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. The current effective date of December 26, 2007 for both DIC and DEA benefits pre-dates this amendment and, prior thereto, there was no evidence of record that the Veteran’s fatal cardiovascular disease was in any way associated with his military service, including any inservice exposure to herbicides, such as Agent Orange. Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.