Citation Nr: 21039846 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-22 705 DATE: July 1, 2021 ORDER Entitlement to an effective date earlier than March 20, 2014, for the award of death pension benefits for aid and attendance to the Veteran's surviving spouse is denied. FINDINGS OF FACT 1. In April 2006, the Agency of Original Jurisdiction (AOJ) notified the Appellant that it was denying her original, October 2005 death pension claim because she failed to respond to a February 2006 notice requesting additional information regarding her reported separations from the Veteran. The April 2006 notice also explained her appeal rights. 2. In May 2006, the Appellant submitted statements from family members regarding the circumstances of her separations from the Veteran. In October 2006, the AOJ notified her that it was continuing to deny the death pension claim because it found other evidence showed that she and the Veteran had been estranged before he died. That notice also stated that the AOJ had not received all information requested in the February 2006 notice and explained her appeal rights. 3. In an August 2007 informal Notice of Disagreement (NOD), the Appellant stated that she was not applying for VA benefits, but rather was contesting what she perceived as the AOJ's finding that she was not the Veteran's spouse. The August 2007 NOD limited her disagreement to the issue of her status as a "surviving spouse" and withdrew any pending claims and prior notices of disagreement with respect to the death pension benefits claim. 4. The AOJ reduced to writing in a March 2008 deferred rating decision the agreed resolution of Appellant's appeal, specifically that the Appellant was the surviving spouse of the Veteran and that the August 2007 statement withdrew all pending claims and appeals with respect to death pension benefits. 5. In April 2008, the AOJ notified the Appellant and her representative accordingly and explained her right to appeal until July 2008 (i.e., the remaining portion of the one-year period after the July 2007 denial notice). The April 2008 notice also clarified that VA acknowledged she and the Veteran were married when he died, although they may not have been living together then. 6. After the April 2008 notice, VA did not receive any submissions or communications (to include statements challenging the April 2008 notice or another timely NOD with the July 2007 denial) from the Appellant or a representative until the March 20, 2014, death benefits claim; and there is no indication that either the Appellant or her representative did not receive that notice. CONCLUSIONS OF LAW 1. The August 2007 NOD met the criteria for a withdrawal of any pending claims or appeals regarding the issue of death pension benefits. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The July 2007 decision continuing to deny the Appellant's death pension benefits claim is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 3. The criteria for entitlement to an effective date earlier than March 20, 2014, for the award of death pension benefits for aid and attendance to the Veteran's surviving spouse have not been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. § 3.402. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to November 1976. He died in August 2005 and the Appellant is his surviving spouse. The Appellant and her son / conservator testified before the undersigned Veterans Law Judge during a March 2019 Travel Board hearing and a transcript of that proceeding is of record. Initially, in an October 2014 rating decision, the AOJ found the Appellant incompetent to handle the disbursement of funds. In December 2014, the Appellant's son submitted a June 2009 state court order showing his appointment as the conservator of the person and the estate of the Appellant. Accordingly, VA recognized the Appellant's son as her fiduciary. 38 C.F.R. § 13.100. In an August 2019 decision, the Board denied the above-listed claim. The Appellant appealed to the United States Court of Appeals for Veterans Claims (Court or CAVC). During the pendency of that appeal, the parties entered into a February 2021 Joint Motion for Remand (JMR). Pursuant to the JMR, the August 2019 Board decision was vacated and the claim was remanded to the Board for readjudication consistent with the terms of the JMR. The Court entered a February 2021 Order granting the JMR, vacating the August 2019 Board decision, and remanding the claim to the Board. The Board thoroughly reviewed all the evidence in the claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. The Board will not repeat all pertinent regulations that the AOJ previously provided in the SOC. The Appellant seeks death pension benefits back to the date she originally applied for benefits in October 2005, the date VA received the Veteran's death certificate in November 2005, May 2006 when VA received statements by the Appellant's family members regarding the circumstances of her separation from the Veteran, or the date of subsequently filed claims in June 2007. See, e.g., September 2020 Appellant's Brief to the CAVC; March 2019 Board Hearing Transcript; May 2016 VA Form 9. (Although the Appellant's representative suggested during the March 2019 Board hearing that VA initially received the death certificate in 2007 or 2008, VA in fact first received it in fall 2005.) The Appellant further contends that the substance of the August 2007 filing ("So at [this] time I [am] not applying for benefits but I [am] contesting the decision that I am not a spouse of a veteran[.] I feel that it is a disadvantage at this time to file for benefits from VA. . . . I do reserved [sic] my right to apply for future or other benefits I may be entitled to as a spouse of a veteran.") because a local veterans' benefits counselor and/or a prior authorized representative erroneously advised her that she could or should not apply for both VA death pension benefits and Social Security Administration (SSA) benefits. Because of this advice, she only applied for the latter, which she understood would maximize her benefits. By way of background, the Appellant filed an original death pension claim (VA Form 21-534) in October 2005. In the claim form, she stated that she and the Veteran had not lived together continuously from the date of their marriage through the Veteran's date of death. In February 2006, the AOJ notified the Appellant that it needed additional information regarding that statement. The February 2006 notice advised that she had one year from the date of that letter to provide the requested information. However, it further indicated that VA may decide the claim within 60 days of that letter if it completed attempts to get all the relevant evidence. It further explained that if VA decides the claim before the one-year period (after the February 2006 notice) then the Appellant would still have until that date (i.e., until February 2007) to submit additional evidence. In April 2006, the AOJ notified the Appellant that it was denying the death pension claim because she failed to respond to the February 2006 letter. The April 2006 notice also explained her right to appeal that decision within one year from the date of that notice. In May 2006, the Appellant submitted statements from family members regarding the circumstances of her periods of separation from the Veteran. In October 2006, the AOJ notified her that it was continuing the denial of the death pension claim. The AOJ acknowledged the May 2006 statements. However, it explained that the Appellant's and the Veteran's own statements of record indicated that they had been estranged before he died. The October 2006 notice also indicated that the AOJ had not received all information requested in the February 2006 notice and explained her appeal rights. The next communication from the Appellant was a May 2007 report of contact in which she made another informal death pension claim for aid and attendance. She then filed a formal claim in June 2007. In July 2007, the AOJ notified her that it was continuing to deny the death pension claim because it still had not received all information requested in the February 2006 notice. The AOJ reiterated its previous finding that the Appellant and the Veteran did not live together continuously from the date of their marriage until the Veteran's death. The Appellant timely filed an August 2007 NOD with respect to the previous, October 2006 denial. (The Board notes that this NOD also was timely with respect to the later, July 2007 denial.) In the August 2007 NOD, the Appellant provided additional information regarding her separations from the Veteran. She also stated that an unspecified local veteran's counselor advised her that pursing VA benefits would adversely affect her entitlement to SSA benefits. Accordingly, she stated that she was not applying for VA benefits, but rather was contesting what she perceived as the AOJ's "decision that I am not a spouse of a veteran." The Veteran's representatives correctly pointed out that her representative at that time also sent in an undated statement that VA received on August 21, 2007 and which requested "de novo review of this appeal under provisions of 38 C.F.R. § 2600." As the Veteran's representative also points out, VA accepted these documents as a notice of disagreement and VA initiated an appeal on August 10, 2007, the date VA received her NOD. In a March 2008 deferred rating decision, the AOJ construed the statements in her August 2007 NOD as a withdrawal of the August 2007 NOD, and indicated that the Appellant's representative confirmed this. The Appellant and her current representative question the apparently absurd logic of "how a document that was found to initiate an appeal can also be the document that withdraws it." September 2020 Appellant's Brief to the CAVC at 7. As the Board interprets the situation and facts, the AOJ's statement is, at best, imprecise. A detailed explanation of the Board's findings of fact is warranted so that the Appellant and her representative can fully understand the basis of the Board's decision including the key factual and legal conclusions being made in this decision. At the time of the August 2007 NOD, the regulations pertaining notices of disagreement included the following provision: Notice of Disagreement. -- A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. 38 C.F.R. § 20.201 (2006). To better understand the situation at the time, the parties should also understand the substantive law regarding the benefits the Appellant sought. As noted above, the Appellant's October 2005 VA 21-534 indicated that she and the Veteran were "separated" in 1982. This was relevant to her claim for death pension benefits, because those benefits are available to a "surviving spouse" and the law defined a "surviving spouse" as a person: whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) Who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) Except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b) (2006). The Appellant's indication that she and the Veteran were separated together with this regulatory provision is why, via an October 2006 Notice Letter, the AOJ denied the Appellant's claim of entitlement to death pension benefits. To be clear, the AOJ determined in October 2006 that the Appellant was not the "surviving spouse" of the Veteran at the time of his death. In her August 2007 NOD, the Appellant took issue with this finding by the AOJ. After providing as much detail as she could regarding the specifics of her and the Veteran's living arrangements and financial interdependence during their marriage, she disclaimed any intent to apply for death pension benefits. However, she made clear that she was "contesting the decision that [she was] not a spouse of a veteran" including because, as she also made clear, she "reserved the right to apply for future or other benefits [that she] may be entitled to as a spouse of a veteran." In context, her unambiguous disagreement was with the finding that she was not a "surviving spouse", rather than the denial of benefits. Thus, her August 2007 NOD was a notice of disagreement that identified a specific issue with which she disagreed: the denial of her status as a "surviving spouse." See 38 C.F.R. § 20.201 (2006) (set out in full above). And, importantly, the Appellant was not wrong that the failure to challenge that determination could have affected her right to "future or other benefits" to which she might otherwise be entitled. The Board need not catalog every possibility, but simply notes that a finding that she was a "surviving spouse" would open the door to multiple benefits whereas a prior finding that she was not a "surviving spouse" could create additional evidentiary and/or procedural hurdles in a future claim for benefits. Therefore, the August 2007 NOD was a disagreement with the determination that she was not a "surviving spouse" and it was limited by its express terms to that issue. Again, in addition to contesting that finding, she also expressly disclaimed any intent to apply for death pension benefits. Consequently, the August 2007 NOD did not constitute a notice of disagreement with respect to the denial of the claim of entitlement to death pension benefits. Here, the Board notes that the line spacing on pages 1-3 of the NOD is distinctly different from the line spacing on page 4. Page 4 begins: "After recently talking to a Veterans counselor in my town of Fairfield Ca. He [sic] explains to me it is best that I did not apply for husband's pension because I would lose income instead of getting extra income [for] my assist[ance.] So at [this] time I [am] not applying for benefits." See August 2007 NOD. This change in font indicates that, while the Appellant initially intended to file a general notice of disagreement, potentially including with the denial of death pension benefits, she changed her mind after talking to an unidentified "Veterans counselor." The point is not to recreate the circumstances that resulted in this document, but to point out that the document itself contains the explanation for why it is titled "Notice of Disagreement" but expressly disclaims an intent to seek the death pension benefits at that time. As discussed above, the Appellant's disagreement with the denial of her status as a "surviving spouse" explains why the document captioned "Notice of Disagreement" was filed despite her simultaneous express intention not to seek death pension benefits. In short, on this view of the evidence and procedural developments, the Appellant's August 2007 NOD initiated an appeal with respect to the question of her status as a "surviving spouse" but not with respect to the underlying claim of entitlement to death pension benefits. This view accounts for the August 21, 2007, filing by her representative electing the decision review officer (DRO) process. As noted in the September 2020 Appellant's Brief to the CAVC, the AOJ then sent a letter acknowledging the NOD and election of the DRO process and explaining how the DRO process works (including the right to appeal if the Appellant "still" did not agree after the DRO decision). Because there was a pending disagreement with respect to the Appellant's status as a "surviving spouse", there was a pending appeal. Likewise, this view makes sense of the March 2008 deferred rating decision which documented that the DRO had confirmed with the representative that, as stated in the August 2007 NOD, the Appellant did not intend to seek death pension benefits. However, as the March 2008 deferred rating decision also noted, the DRO and the representative agreed to resolve the "surviving spouse" issue in Appellant's favor. It is in these circumstances that the AOJ sent an April 2008 notice letter favorably resolving the "surviving spouse" issue and "withdrawing" the appeal "per the conversation held between [Appellant's] designated service organization representative American Legion and the Decision Review Officer." The letter further explained that Appellant had until July 2008 (i.e., the remaining portion of the one-year period from July 2007 denial notice) to appeal. The issue then is not whether the August 2007 NOD constituted a withdrawal of an appeal initiated by the August 2007 NOD. Rather, the issues are whether the AOJ should have initiated an appeal of the death pension benefit claim based on the August 2007 NOD and, if an appeal had been properly initiated, whether the appeal was subsequently withdrawn. At the risk of being repetitive, the above facts establish that the August 2007 NOD should not have resulted in an appeal with respect to the death pension benefits claim. A claimant may limit their appeal to specific issues and the August 2007 NOD did exactly that. 38 C.F.R. § 20.201 (2006). However, prior procedural history is also relevant in interpreting the August 2007 NOD as not only a notice of disagreement with respect to "surviving spouse" status, but also as a withdrawal of any prior appeals or claims. Specifically, in May 2006, in response to the April 2006 notice letter, the Appellant sent in numerous pieces of evidence to support her claim. Taking a very liberal view of the law and the evidence, particularly given that the Appellant was pro se at the time, these submissions could have been construed as a notice of disagreement. See April 2006 notice letter ("If you do not agree with our decision, you should write and tell us why."); Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir. 2009) ("[T]he Board has a special obligation to read pro se filings liberally."); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (emphasizing that pro se filings must be read liberally). On this view, the August 2007 NOD initiated an appeal of the "surviving spouse" issue while also withdrawing any pending claim or appeal with respect to death pension benefits. Note, the Board is not deciding that the May 2006 filings were a proper notice of disagreement, but is making this finding in the alternative. Specifically, assuming the submission of additional evidence after the April 2006 notice letter constituted a notice of disagreement, the August 2007 NOD was a valid withdrawal of that appeal in that it included the name of the veteran, the name of the Appellant, the applicable VA file number, and a statement that can only be construed as a desire to withdraw any pending appeals or claims for death pension benefits ("I [am] not applying for benefits . . .I feel that it is a disadvantage at this time to file for benefits from VA."). 38 C.F.R. § 20.204(a) (2006). Notwithstanding the limitation of the August 2007 NOD to the issue of "surviving spouse" status, the AOJ did initiate an appeal with respect to the entire claim. As the Board interprets the record, initiation of the appeal of death pension benefit claim in August 2007 was error. But, the AOJ corrected the error (after confirming the error with the representative) and the Appellant was notified of the correction via the April 2008 notice letter. Any prejudice to the Appellant in mistakenly initiating an appeal of the death pension benefits claim was cured by notifying her of the withdrawal of the claim and her right to initiate an appeal within the remaining time. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. June 18, 2015) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Shinseki v. Sanders, 556 U.S. 396, 407-11 (2009) (applying harmless error analysis in context of veterans benefit law). In any case, even assuming that an appeal initiated in error must be withdrawn by the claimant-appellant, the DRO had a conversation with the Appellant's representative that was reduced to a writing containing all of the necessary elements of a withdrawal. See March 2008 deferred rating decision; 38 C.F.R. § 20.201 (2006); accord Hanson v. Brown, 9 Vet. App. 29, 32 (upholding a Board determination that a claim was withdrawn where that determination was "supported chiefly by a 'Report of Contact' contemporaneously prepared by the social worker assigned to evaluate the appellant"). Thereafter, the Appellant and her representatives were informed of the AOJ's determination that her appeal was being withdrawn "per the conversation" between her representatives and the DRO. Again, the withdrawal of any erroneously initiated appeal satisfied the criteria for a withdrawal and the Appellant was notified of the AOJ's resolution of her August 2007 NOD (both in withdrawing any pending appeals and acknowledging her marriage to the Veteran). See April 2008 notice letter. As the Court in Hembree noted, "the fact that the appellant can renew the appeal after withdrawing it shows us that the regulation contemplates the appellant changing his or her mind or undoing the withdrawal if it is submitted by mistake or if there is a change in circumstances." Hembree v. Wilkie, 33 Vet. App. 1, 6 (2020). Therefore, to the extent there was error in the AOJ's interpretation of the August 2007 NOD or in the reduction to writing of the agreement between the Appellant's representative and the DRO in the March 2008 deferred rating decision, the Appellant was informed of the AOJ's determinations and given an opportunity to respond or object or renew the appeal. Id. ("the requirements for specificity, found in § 20.204(b), and the ability to renew an appeal under § 20.204(c) act to protect the appellant's interest in the claim"). She did not do so. Subsequent to the April 2008 notice letter, VA did not receive any further communications or submissions from the Appellant or an authorized representative (including any statements challenging the April 2008 notice or another timely NOD with the July 2007 denial) until March 20, 2014, when she filed another death pension claim for aid and attendance. In a May 2014 rating decision, the AOJ awarded death pension benefits for aid and attendance effective March 20, 2014 based on the date when it received the most recent claim. This effective date appeal followed. Generally, an award for aid and attendance and housebound benefits for a surviving spouse will be effective the date the claim was received or the date entitlement to that benefit arose, whichever is later. See 38 C.F.R. § 3.402(c)(1). The regulation provides for two limited exceptions. First, when an award of dependency and indemnity compensation (DIC) or pension benefits based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional DIC benefits payable to the surviving spouse by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. See id. Second, regarding aid and attendance benefits only, the date of departure from a hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. See id. In this case, the Appellant is not entitled to an earlier effective date than March 20, 2014 for the award of death pension benefits for aid and attendance. The AOJ properly assigned the earliest effective date available under 38 C.F.R. § 3.402(c)(1) based on when VA received her pending March 20, 2014 claim. This claim was the most recent communication or submission from the Appellant after the April 2008 notice confirming her withdrawal of her August 2007 NOD and advising her of her appeal rights. The Appellant does not appear to contend and the record does not suggest that the Appellant or her representative did not receive the April 2008 notice. As the Appellant did not file another timely NOD within the remaining portion of the one-year appeal period after the July 2007 denial, it became final. Moreover, the Appellant does not contend and the record does not suggest that the exceptions under 38 C.F.R. §§ 3.402(c)(1) and (2) apply here to warrant an earlier effective date than March 20, 2014 for the award of survivor's benefits for aid and attendance. The Board recognizes the Appellant's argument that VA should award an effective date prior to March 20, 2014 because a prior veterans' benefits counselor and/or representative misinformed her about her rights to pursue VA survivor's benefits concurrently with SSA benefits. The Board also acknowledges the Appellant's contention that her award of death pension benefits should be effective either: May 2006 (when VA received statements by the Appellant's family members regarding the circumstances of her prior separations from the Veteran); or alternatively, September 19, 2005 (when VA received the Veteran's death certificate showing that he and the Appellant were married when he died.) The Board is sympathetic to these contentions. It is unfortunate that neither she nor an authorized representative filed another timely NOD with the July 2007 denial or responded in any way to the April 2008 notice (acknowledging her withdrawal of her prior appeal) until receipt of the death benefits claim on March 20, 2014. However, these amount to arguments couched in equity, and the Board lacks authority to grant VA benefits on an equitable basis. Therefore, the Board has no choice but to deny this appeal under the clear and specific regulations summarized above governing effective dates, the finality of prior VA decisions, and withdrawals of VA benefits appeals. Furthermore, the Board acknowledges the Appellant's contention that she inquired about the status of her prior death pension benefits claims or possibly reapplied for death pension benefits at some points between the April 2008 notice and the March 2014 claim. See March 2019 Board Hearing Tr. at 6. However, the record contains no contemporaneous documentation of such alleged inquiries or claims. As explained above, after the April 2008 notice, the next recorded communication or submission by the Appellant or an authorized representative was the March 20, 2014 claim. In conclusion, an earlier effective date than March 20, 2014 for the award of survivor's benefits for aid and attendance is unwarranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Appellant has not raised any other issues; nor have any other issues been reasonably raised by the record. See Scott v. McDonald, 789 F.3d1375, 1381 (Fed. Cir. 2015) (holding "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the appellant fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board, the Board need not discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. Finally, the Appellant is advised that the only other legal method to attack a final decision is to file a motion to revise the final decision based upon clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Board will not expand the claim on appeal to include a claim of CUE in the prior denials. While an appeal of an effective date and a motion for revision of a prior final rating decision based on CUE are both methods by which an appellant may obtain an earlier effective date, they are separate processes, each with distinct requirements. An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of an appeal for an earlier effective date. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Therefore, jurisdiction over an earlier effective date appeal does not extend to an allegation of CUE in a prior final rating decision. See Phillips v. Brown, 10 Vet. App. 25, 33 (1997). Rather, such a CUE motion must be adjudicated by the AOJ in the first instance and separately appealed to the Board. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006). The Appellant could be prejudiced if the Board construed her statements and filings as raising such a claim because the claim is only implied, at best, and she has not had the opportunity to develop any such claim or meet the pleading requirements. This determination does not prevent the Appellant from filing a separate claim of CUE in a prior, final denial. Again, there are specific pleading requirements for such claims, and she should consult with her authorized representative. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.