Citation Nr: 21008647 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-28 634A DATE: February 17, 2021 ORDER A timely notice of disagreement (NOD) was received as to a September 2014 rating decision awarding accrued benefits, and the appeal to establish timeliness of the NOD is granted. FINDINGS OF FACT 1. A September 2014 rating decision awarded the appellant accrued benefits, and she was notified of the award by letter dated September 11, 2014; an NOD was received on August 30, 2016, in which she disagreed with the amount of accrued benefits that were awarded. 2. A September 2016 administrative decision determined that the August 2016 NOD was untimely. 3. The appellant had submitted additional evidence relevant to the accrued benefits claim on September 26, 2014 and July 29, 2015, within a one-year appeal period following the September 2014 rating decision, and the Agency of Original Jurisdiction (AOJ) has not determined whether such evidence was new and material as to her accrued benefits claim. CONCLUSION OF LAW The appellant’s June 2014 claim for accrued benefits remains pending, and the September 2014 rating decision granting accrued benefits is not final; consequently, the appellant’s August 30, 2016 NOD, expressing disagreement with the amount of accrued benefits awarded in a September 2014 rating decision was timely, and an appeal of that decision has been properly initiated. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.155(a) (in effect prior to March 24, 2015), 3.156(b), 19.52(a), 20.1103; Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to July 1969. He died in March 2014, and the appellant is the Veteran’s surviving mother. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 Department of Veterans Affairs (VA) administrative determination of an Agency of Original Jurisdiction (AOJ). A February 2019 Board decision denied the appellant’s appeal seeking to establish that she had filed a timely NOD as to a September 2014 rating decision that awarded accrued benefits. She appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). A June 2020 CAVC Order granted a June 2020 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision and remanding the matter to the Board for action consistent with the JMR. Timeliness of an NOD as to a September 2014 rating decision awarding accrued benefits In June 2014, the appellant filed a claim for accrued benefits. A September 2014 rating decision awarded her accrued benefits, and in a letter dated September 11, 2014, the AOJ advised her of the decision and the amount of money she would be paid. Specifically, she was awarded $233.16 per month in parents’ Dependency and Indemnity Compensation (DIC) and a one-time accrued benefit in the amount of $2,207 in reimbursement for the remaining burial expenses she paid. As to that accrued benefit amount, the AOJ noted that the appellant had paid a total of $4,207 in burial expenses for the Veteran and that the VA had previously awarded her $2,000 in burial benefits. In other words, the total amount of her expenses ($4,207) were reimbursed through the burial benefit ($2,000) plus the accrued benefit ($2,207). Under governing law, after a veteran’s death, periodic monetary benefits from VA which were due and unpaid, commonly referred to as “accrued benefits,” can be paid to certain claimants [the law lists, in descending order, the eligible individuals to whom the benefits may be paid], to include in certain circumstances to a person who bore the expense of the Veteran’s last sickness or burial. See 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000(a). The September 11, 2014 notification letter included information as to the appellant’s appellate rights, to include that, if she disagreed with the decision, she should so inform the AOJ. She was further advised that she had one year from the date of the notification letter to appeal the decision. On September 26, 2014, the appellant submitted additional records not already on file, to include the Veteran’s birth certificate and divorce decree. On July 29, 2015, she submitted more records, including VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, on which she reported various amounts (not previously considered by the AOJ) for medical, last illness, burial, or other unreimbursed expenses. The AOJ did not review such additional evidence. In March 2016, the appellant and her daughter inquired by letter as to the status of the claim for accrued benefits. In reply by letter in June 2016, the VA informed her that it had received her July 2015 application for DIC and accrued benefits but that she had already been paid accrued benefits and was granted parents’ DIC (as noted in an enclosed copy of the September 11, 2014 award letter). Then, on August 30, 2016, the VA received the appellant’s NOD (VA Form 21-0958), dated August 23, 2016, wherein she disagreed with the amount of accrued benefits she was awarded (she stated she was told that she was due more accrued benefits). In a September 2016 letter, the AOJ decided that it could not accept her NOD because it was untimely, having been received more than one year from the date she was notified of the September 2014 rating decision. Turning to the matter at hand, the appellant claims that she submitted a timely NOD with the September 2014 rating decision. It is her underlying contention that she was entitled to more accrued benefits than she was awarded in September 2014. (Her attorney argued in a March 2020 brief filed with the CAVC that she felt she was also entitled to the full amount of calculated accrued benefits that were generated by the compensation award, which amounted to $29,701.68.) Relevant regulations define an NOD as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result.” 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015); see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). Prior to March 24, 2015, the NOD must be expressed “in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review” and “the specific determinations with which the claimant disagrees must be identified.” 38 C.F.R. § 20.201 (2014). In this regard, the Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. Because the claim in this case was received by VA prior to that date, the former regulations apply. Except in the case of simultaneously contested claims, a claimant, or his or her representative must file an NOD with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination becomes final. The date of mailing the letter of notification of the determination is presumed to be the same as that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302 (2014) (now codified at 38 C.F.R. § 19.52(a) (2020)), 20.1103. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156(b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Further, VA is required to provide a “directly responsive” determination as to whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Mitchell v. McDonald, 27 VA 431, 437 (2015); Beraud v. McDonald, 766 F3d. 1402, 1405 (Fed. Cir. 2014). And, VA has an express regulatory obligation to decide the character of the new evidence submitted. See Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). Here, as described above, the appellant submitted additional evidence (to include the Veteran’s birth certificate and divorce decree and a July 2015 application for accrued benefits) within the one-year period after issuance of the September 11, 2014 award letter. Because this evidence was received within the appeal period of the September 2014 rating decision and is reasonably related to her accrued benefits claim, VA had an obligation to consider the evidence as having been filed in connection with her original June 2014 claim for accrued benefits, and VA was required to determine whether it was new and material. 38 C.F.R. § 3.156(b); Beraud, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). The AOJ, however, never decided whether this evidence was new and material evidence under 38 C.F.R. § 3.156(b), and it remained unadjudicated. It thus runs afoul of Beraud, where the Federal Circuit concluded that until VA provides a determination that is “directly responsive” to the new submission, the claim at issue remains open. Id. In view of the foregoing, the appellant’s June 2014 claim for accrued benefits remains pending, the September 2014 rating decision is not final, and the August 2016 NOD is deemed to be timely. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b); Beraud, 766 F.3d 1402, 1407. Accordingly, the appellant has properly initiated an appeal of the September 2014 rating decision upon it being reconsidered in light of the additional evidence received withing a year following that decision. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.