Citation Nr: 21064084 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-48 288A DATE: October 19, 2021 ORDER Entitlement to service connection for non-ischemic dilated cardiomyopathy with implantable cardioverter defibrillator (claimed as coronary artery disease (CAD)) because of exposure to herbicide agents is dismissed. FINDINGS OF FACT 1. Entitlement to service connection for non-ischemic dilated cardiomyopathy with implantable cardioverter defibrillator (claimed as CAD) was denied in a December 2015 rating decision; the Veteran filed a timely September 2016 notice of disagreement (NOD). 2. VA issued a September 2017 Statement of the Case (SOC), but no VA Form 9 was filed. CONCLUSION OF LAW There is no justiciable case or controversy on appeal before the Board with respect to the issue of service connection for non-ischemic dilated cardiomyopathy with implantable cardioverter defibrillator (claimed as CAD) because of exposure to herbicide agents was not filed; the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1953 to January 1984, with verified service in Vietnam. The Board notes that the Veteran died in March 2018. A July 2018 Administrative Decision determined the Appellant was the Veteran's surviving spouse. Prior to the Veteran's death, a December 2015 rating decision denied service connection for non-ischemic dilated cardiomyopathy with implantable cardioverter defibrillator (claimed as CAD) resulting from exposure to herbicide agents. The Veteran was notified of the decision and the appropriate appellate rights by letter dated that same month. A NOD was received in September 2016. A SOC was issued in September 2017, The Veteran did not file a VA Form 9 appealing the matter. The notification letter attached to the September 2017 SOC included notice that the substantive appeal (VA Form 9) must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the rating decision. In this case, the one-year period had expired; the 60-days period from issuance of the SOC expired in November 2017. The letter also stated that, if the substantive appeal was not filed within the specified period, the case would be closed. It was further explained that any request for an extension of time to file should be made prior to the expiration of the time limit for filing the appeal. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals." 38 C.F.R. § 20.202. Prior to March 24, 2015, written correspondence could also be accepted in lieu of a VA Form 9, if it contained adequate information within the written communication to be construed as perfecting the appeal to the Board. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form, to include the VA Form 9 to perfect an appeal to the Board under the Legacy system. The Board also reviewed an October 2020 VA Memorandum noting the Veteran had a pending appeal at the time of his death. The Memorandum noted a January 2019 request to substitute from the Veteran's surviving spouse. Substitution was granted to the Appellant for the purposes of processing the appeal to completion. The Board notes that the VA may waive any issue of timeliness in the filing of a substantive appeal. However, the fact that no substantive appeal has been filed in this case renders the question of a waiver moot. Percy v. Shinseki, 23. Vet. App. 37 (2009). Accordingly, there is no justiciable case or controversy regarding the issue presented. There are no remaining allegations of error of fact or law with respect to this claim. 38 U.S.C. §§ 7104, 7105(d)(5), 5107; 38 C.F.R. § 20.104. Because no specific error of fact or law remains, the Board is without jurisdiction to review the issue presented. Accordingly, the appeal must be dismissed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate 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.