Citation Nr: 21065405 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-61 845 DATE: October 26, 2021 ORDER The appeal regarding entitlement to service connection for the cause of the Veteran's death is dismissed. FINDING OF FACT The appellant did not submit a substantive appeal within 60 days of the November 15, 2017, statement of the case regarding the issue of service connection for the cause of the Veteran's death. CONCLUSION OF LAW The criteria for a timely substantive appeal regarding the issue of service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52(b), 19.53, 20.202, 20.302(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from July 1943 to July 1946. He passed away in August 2016. The appellant is the guardian of R.G., who is the Veteran's adult son. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 decision of a Regional Office of the Department of Veterans Affairs (VA) that denied recognition of R.G. as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 and denied service connection for the cause of the Veteran's death. The appellant submitted a notice of disagreement to this decision in October 2017. A VA Regional Office then issued a statement of the case regarding both issues in November 2017. Later that month, the Veteran submitted a VA Form 9, which is the prescribed form for a substantive appeal to the Board. There, the appellant indicated she wished only to appeal the issue relating to recognition of R.G. as a child of the Veteran based on permanent incapacity for self-support. Pursuant to the appellant's November 2017 substantive appeal, the Board issued a decision in April 2019 that denied the appeal regarding recognition of R.G. as the Veteran's child and determined that no substantive appeal was filed with respect to the issue of service connection for the cause of the Veteran's death. The appellant appealed that denial to the United States Court of Appeals for Veterans Claims (Court), which issued a November 2019 order granting a Joint Motion for Remand. That order determined that the Board had not followed the proper procedures relating to a determination to dismiss the issue of entitlement of service connection for the cause of the Veteran's death as set forth at 38 C.F.R. § 20.104(c). It remanded the matter of entitlement to recognition of R.G. as the Veteran's child for other reasons. The Board then remanded both issues to the Regional Office in May 2019 for a variety of development, to include directing it to issue the appellant a statement informing her of the claims processing defect of the absence of a substantive appeal regarding the issue of service connection for the cause of the Veteran's death and allowing her an opportunity to submit arguments and evidence relating to this question as well as an opportunity for a hearing. The Regional Office subsequently granted recognition of R.G. as the Veteran's child on the basis of permanent incapacity for self-support prior to attaining age 18 in a June 2021 decision. In the interim, it sent the appellant a September 2020 letter notifying her of the claims processing defect regarding the appeal of the denial of service connection for the cause of the Veteran's death. It informed her that that appeal had not been perfected according to its claims processing rules. It also invited her to submit arguments or evidence relating to the issue and to request a hearing. No response to this correspondence was received. Under 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information; a substantive appeal must identify the issues being appealed (specifying some or including all), and present specific allegations of error by VA in denying the claim. See 38 C.F.R. § 20.202. To be considered timely, a substantive appeal must be filed with the agency of original jurisdiction within 60 days from the date that the agency mails notice of the statement of the case to the claimant, or within the remainder of the one-year period from the date of notice of the decision being appealed, whichever is later. 38 C.F.R. §§ 20.302(b)(1), 19.52(b). The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. Additionally, the deadline for filing a substantive appeal may be (1) extended for good cause if the claimant files a request in writing during the appeal period, 38 C.F.R. § 19.53; or (2) equitably tolled, Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Here, the only substantive appeal to the Board submitted by the appellant specifically states that she only wished to appeal the issue relating to the "helpless child" determination of R.G. No other VA Form 9 or other statement relating to the issue of service connection for the cause of the Veteran's death was received within the appeal period of the November 2017 statement of the case regarding that issue. The record also contains no statement or request to extend the appeal period due to good cause. In absence of any substantive appeal regarding the issue and the Board's repeated statements that it may not consider the matter, the Board finds that the requirement of a timely substantive appeal have not been waived either explicitly or implicitly. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Due to the absence of any substantive appeal within the appeal period and, indeed, the absence of the submission of any substantive appeal whatsoever, the Board issued the appellant and a letter alerting her to the jurisdictional defect and inviting her to present argument or attend a hearing with respect to this question. No response to this letter nor has any request for an extension for the time to submit a substantive appeal has been received. In these circumstances, the Board finds that there has not been a timely substantive appeal submitted in this case as defined by VA regulations nor any waiver of the requirement to submit such a timely substantive appeal. The appeal is dismissed. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.