Citation Nr: 21021075 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-08 735 DATE: April 9, 2021 ORDER Entitlement to recognizing A.L as the dependent child of the Veteran is dismissed. Entitlement to recognizing L.L as the dependent child of the Veteran is dismissed FINDINGS OF FACT 1. On January 27, 2014, a Department of Veterans Affairs (VA) Regional Office (RO) issued a decision denying the Veteran’s application to add his stepchildren A.L. and L.L. as dependents to his VA compensation award. The Veteran filed a timely notice of disagreement (NOD) on January 30, 2014. 2. In April 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim pertaining to A.L. and L.L. for the issuance of a statement of the case (SOC). 3. A SOC was issued in August 2020. Since the issuance of the SOC, the Veteran has not filed a VA Form 9 (substantive appeal) or any other statement which may be interpreted as analogous to a substantive appeal. CONCLUSIONS OF LAW 1. The issue of entitlement to recognizing A.L as the dependent child of the Veteran is dismissed for lack of jurisdiction. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 19.22, 19.52, 19.53, 20.104. 2. The issue of entitlement to recognizing L.L as the dependent child of the Veteran is dismissed for lack of jurisdiction. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 19.22, 19.52, 19.53, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to June 1998, January 1999 to February 2001, and January 2003 to May 2004—including service in the Southwest Asia theater of operations. These matters come before the Board on appeal from a January 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the Phoenix, Arizona RO. In April 2019, the Board denied an earlier effective date for the addition of the Veteran’s spouse, M.T., as a dependent. The Board also raised and remanded the issues of recognizing A.L. and L.L. as the dependent children of the Veteran. Recognizing A.L. and L.L. as Dependents As mentioned above in the Findings of Fact section, in April 2019 the Board remanded the issues of recognizing A.L. and L.L. as the dependent children of the Veteran pursuant to the Court of Appeals for Veterans Claims’ (Court) holding in Manlincon v. West. 12 Vet. App. 238. Specifically, Manlincon addressed the procedural requirement—now embodied in 38 C.F.R. § 19.26—that if there has been an initial adjudication of a claim and a NOD has been submitted, a claimant is entitled to receive a SOC. In this case, the Veteran’s dependency claim regarding A.L. and L.L. was denied in a January 2014 decision and a NOD was received later that month. Thus, under 38 C.F.R. § 19.26, the Veteran was entitled to receive a SOC. As that had not yet occurred, the April 2019 Board remanded the dependency claim concerning A.L. and L.L. for the Agency of Original Jurisdiction (AOJ) to satisfy 38 C.F.R. § 19.26’s mandate of issuing a SOC. Following the April 2019 remand, the AOJ issued a SOC on August 28, 2020. However, in response to the SOC, the Veteran did not file a timely substantive appeal to complete the steps necessary to perfect his appeal of these dependency issues to the Board. See 38 C.F.R. §§ 19.20, 19.22. Accordingly, the Board dismisses the Veteran’s appeal as it finds that it is without jurisdiction to review the issues of recognizing A.L. and L.L. as dependents. See 38 C.F.R. § 20.104(c). Specifically, in order for the Board to now have jurisdiction over the issues of recognizing A.L. and L.L. as dependents, the Veteran had to file a substantive appeal within 60 days of the issuance of the SOC. See 38 C.F.R. § 19.52 Indeed, 38 C.F.R. § 19.52(b) mandates that a claimant “must” file a substantive appeal within 60 days from the date the AOJ mails the SOC. A substantive appeal may be submitted on a completed VA Form 9 or other correspondence which conveys similar information regarding the claimant’s desire to pursue his or her appeal to the Board. See 38 C.F.R. § 19.22. The Veteran has yet to file a substantive appeal in response to the August 2020 SOC. The Board acknowledges that 38 C.F.R. § 19.53 permits an extension of the 60-day period for filing a substantive appeal. But, the Veteran has not requested an extension in this case. Additionally, the Board acknowledges that, in Percy v Shinseki, the Court held that (1) the untimeliness of receipt of a substantive appeal is not a jurisdictional bar for consideration of an issue by the Board, and (2) VA may waive any timeliness concerns regarding the filing of a substantive appeal. 23 Vet. App. 37, 45 (2009). Unlike Percy, the Veteran in this case has not submitted a substantive appeal form or any analogous correspondence following the issuance of August 2020 SOC. Additionally, VA has not waived any timeliness issues. Indeed, in the April 2019 remand directives, the Veteran was explicitly told that the filing of a substantive appeal after the issuance of the SOC was necessary for the Board to consider the issues of recognizing A.L. and L.L. as dependents. Accordingly, as the Veteran did not perfect his appeal by filing a substantive appeal following the issuance of the August 2020 SOC, the Board dismisses the case due to lack of jurisdiction. See 38 C.F.R. § 20.104. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.