Citation Nr: 22009124 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 19-06 202 DATE: February 16, 2022 ORDER The appellant did not file a timely notice of disagreement (NOD) with the August 2014 rating decision that granted service connection for the cause of the Veteran's death and established basic eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 (Chapter 35); thus, the claim is denied. FINDINGS OF FACT 1. In a January 2008 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for entitlement to service connection for schizophrenia, paranoid type, and assigned a 30 percent disability rating, effective May 25, 2007. The Veteran did not appeal this decision. 2. At the time of the Veteran's death in August 2011, the Veteran did not have a pending claim. 3. In an August 2014 rating decision, the AOJ granted service connection for the cause of the Veteran's death, effective August 1, 2011, and eligibility to DEA benefits under Chapter 35 from the date of the Veteran's death. The appellant was notified of this decision by an August 27, 2014 letter, which was sent to her address at the time and was not returned to VA as undeliverable. 4. In June 2015, the appellant filed an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) in which she sought service connection for a mental condition, to include posttraumatic stress disorder (PTSD), and an increased rating claim on the Veteran's behalf. 5. In reply to the appellant's inquiry, in a January 2016 letter, VA informed her, in pertinent part, that VA is unable to accept a claim for an increased compensation rating posthumously or from anyone other than the Veteran. Similar letters were mailed to the appellant in May 2016 and October 2016. 6. On a February 2016 NOD form, the appellant disagreed with disability rating of the Veteran's paranoid schizophrenia disability, and asserted that although not listed on the Veteran's original application, service connection for PTSD and hearing loss should be service connected. 7. In a March 2016 decision, the AOJ informed the appellant that the February 2016 NOD was not timely to appeal the August 2014 rating decision, as the NOD was submitted more than one year after the notification of the August 2014 rating decision. 8. The appellant has not advanced a valid assertion of clear and unmistakable error (CUE) in the January 2008 rating decision that assigned a 30 percent disability rating for paranoid schizophrenia. CONCLUSION OF LAW The appellant did not file a timely NOD with the August 2014 rating decision that granted service connection for the cause of the Veteran's death and established basic eligibility to DEA benefits under Chapter 35; thus, the May 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2002 to June 2002 and from July 2003 to February 2004. The Veteran died in August 2011. The appellant is his mother. In April 2021, the appellant provided testimony in a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The appellant contends that the Veteran's service-connected schizophrenia, paranoid type, should have been rated in excess of 30 percent and that he was entitled to additional service-connected disabilities, such as PTSD and hearing loss, during his lifetime. She has made these contentions throughout the appeal, including in the February 2016 NOD form that the AOJ considered untimely to the August 2014 rating decision, as well as in the April 2021 Board hearing. A review of the record shows that the AOJ has characterized the issue on appeal as whether the February 2016 NOD was timely to appeal the August 2014 rating decision that granted service connection for the cause of the Veteran's death and entitlement to DEA benefits under Chapter 35. However, the evidence in the record also shows that the AOJ has addressed and adjudicated the underlying merits of the appellant's contentions for additional benefits that should have been granted during the Veteran's lifetime. The Board shall address both matters below. An appeal to the Board must be initiated by an NOD and completed by a substantive appeal (VA Form 9, Appeal to the Board) after a statement of the case (SOC) is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. With respect to an NOD, a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute an NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes an NOD. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A claimant or her representative must file an NOD within one year from the date that the AOJ mailed notice of a decision. 38 C.F.R. § 20.302(a). If an NOD is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely NOD is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether an NOD has been filed on time is appealable. If a claimant or her representative protests an adverse decision made by the AOJ with respect to the timely filing of an NOD, the claimant will be furnished an SOC on the issue of whether the NOD was timely. 38 C.F.R. §§ 19.34, 20.101(c). The essential facts in this case are not in dispute. The record shows that on May 25, 2007, the Veteran filed service-connection claims for paranoid schizophrenia, knee problems, and sleep problems. In a January 2008 rating decision, the AOJ granted the Veteran's claim for entitlement to service connection for schizophrenia, paranoid type, and assigned a 30 percent disability rating, effective May 25, 2007. This rating decision also denied service connection for knee problems. The Veteran did not appeal this decision or submit new and material evidence within one year. Thus, the January 2008 rating decision is final. The Veteran died in August 2011. At the time of his death, the Veteran did not have a pending claim. Specifically, the record shows that the Veteran did not file any additional service-connection, increased-rating, or other claim for VA benefits after the issuance of the January 2008 rating decision and before his death. In fact, the appellant does not contend that any such claim was pending or unadjudicated at the time of the Veteran's death. Within one year of the Veteran's death, the appellant filed claims for parents dependency and indemnity compensation (DIC), burial benefits, and service connection for the cause of the Veteran's death. In an August 2014 rating decision, the AOJ granted service connection for the cause of the Veteran's death, effective August 1, 2011, and eligibility to DEA benefits under Chapter 35 from the date of the Veteran's death in August 2011. The appellant was notified of this decision by an August 27, 2014 letter, which was sent to her address at the time and was not returned to VA as undeliverable. The record shows that the appellant did not appeal the August 2014 rating decision within one year of the August 27, 2014 letter. The August 2014 rating decision appears to have provided the highest benefits for DIC and DEA under Chapter 35 benefits, as it granted service connection for the cause of the Veteran's death and DEA benefits and assigned the earliest effective dates allowed unde the law. However, in June 2015, the appellant filed a VA Form 21-526EZ, in addition to several supporting statements, in which she sought service connection for a mental condition, to include PTSD, and an increased rating claim on the Veteran's behalf. Specifically, she stated that she was requesting an increase in the Veteran's service-connected disability from his original rating to the time of his service-connected death in August 2011. In a January 2016 letter, VA informed the appellant that it had received her inquiry stating that the Veteran should have been granted a 100 percent disability rating for PTSD instead of the 30 percent rating for paranoid schizophrenia. The letter stated that although the Veteran was granted a 30 percent disability rating for the service-connected paranoid schizophrenia in the January 2008 rating decision, he passed away in August 2011. The letter informed the appellant that VA did not receive a claim for increased benefits from the time the Veteran was granted compensation benefits until the time of his death, nor did VA receive an appeal from the Veteran disagreeing with the decision to assign his disability a 30 percent rating. The letter further notified the appellant that VA is unable to accept a claim for an increased rating posthumously (after the Veteran's death) or from anyone other than the Veteran. The Board notes that the AOJ sent similar letters to the appellant in May 2016 and October 2016, which also informed her that VA cannot accept original claims for service connection or increased ratings after the Veteran's death or from anyone other than the Veteran. The record shows that in reply to the January 2016 letter, the appellant filed a February 2016 NOD, in which she disagreed with disability rating of the Veteran's paranoid schizophrenia disability, and asserted that although not listed on the Veteran's original application, service connection for PTSD and hearing loss should be service connected. The AOJ construed this February 2016 NOD form as an NOD to the August 2014 rating decision that granted service connection for the cause of the Veteran's death and DEA benefits under Chapter 35. Thus, in a March 2016 decision, the AOJ notified the appellant that the February 2016 NOD was not timely to appeal any decision in the August 2014 rating decision as the NOD was submitted more than one year after the notification of the August 2014 rating decision. Initially, the Board finds that an NOD was not timely filed in response to the August 2014 rating decision as the February 2016 NOD form was filed more than one year following the August 27, 2014 notification of the grant of service connection for the cause of the Veteran's death and entitlement to DEA benefits under Chapter 35. As the February 3, 2016, NOD was not timely to appeal the August 2014 rating decision that rating decision is final. 38 C.F.R. §§ 20.204(c), 20.302. No earlier communication from the appellant was received after the August 27, 2014 letter that could reasonably be construed as a timely NOD following the grant of service connection for the Veteran's death and entitlement to DEA benefits under Chapter 35, as well as the effective dates assigned for these benefits. However, as noted above, the appellant is not asserting that she filed an NOD with the grants or the effective dates assigned for the benefits within the August 2014 rating decision. Rather, she contends that the Veteran should have been granted an initial disability rating in excess of 30 percent for paranoid schizophrenia, as well as service connection for PTSD and hearing loss, while he was alive, even though the Veteran did not file any such claims during his lifetime. The record shows that the appellant has made these assertions as early as 2012; however, the Board notes that even the earliest contention by the appellant that the Veteran was entitled to a higher rating or to additional disability benefits was made following the Veteran's death. The law governing claims for accrued benefits provides that, upon the death of a veteran, certain individuals may be paid periodic monetary benefits to which a veteran was entitled at the time of his or her death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the death occurred. 38 U.S.C. § 5121 ; 38 C.F.R. § 3.1000 For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits; (ii) the veteran had a claim pending at the time of death; (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000. All or any part of such benefits is first made to a veteran's surviving spouse, child(ren) and/or dependent parents. 38 U.S.C. § 5121(a)(6). An application for accrued benefits must be filed within one year after the death of the veteran. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A claim for accrued benefits is separate from any claim that the Veteran filed prior to his death. In other words, the appellant takes any claim of the Veteran as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Hence, in order for an appellant to be entitled to accrued benefits, the Veteran must have had a claim for VA benefits pending at the time of his death or have been entitled to such benefits under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The record shows that at the time of the Veteran's death in August 2011, the Veteran did not have a pending claim for VA benefits. Accordingly, there are no possible accrued benefits that could be paid to the appellant as such is precluded as a matter of law. The record shows that the appellant asserted in a January 2017 statement that she was requesting CUE on all paperwork that she has submitted since August 2011. She clarified in a March 2017 statement that she was asserting that VA committed CUE in 2007 when it rated the Veteran's paranoid schizophrenia as 30 percent disabling as opposed to 100 percent disabling. Furthermore, she again asserted in the March 2019 VA Form 9 that she was filing CUE and that a big error was made in the February 2019 VA letter, which, in pertinent part, again informed the appellant that there was no provision in VA regulations for a veteran's surviving parent to file a new claim for benefits on behalf of the veteran after the date of the veteran's death. VA regulations allow for the revision of the decision in question on the grounds of CUE. According to 38 C.F.R. § 3.105(a), where the evidence establishes such error, the prior decision will be reversed or amended. A rating, or other adjudicative decision that constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (Court) has established a three-prong test defining CUE, which is as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). "In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 314 (1992). An asserted failure to evaluate and interpret correctly the evidence is not CUE. See Eddy v. Brown, 9 Vet. App. 52, 54 (1996). A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the United States Court of Appeals for the Federal Circuit (Federal Circuit) emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that VA reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). "[I]t is a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, [CUE]." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The record in an appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. Importantly, a finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell, 3 Vet. App. at 313-14. The Board finds that the appellant has not advanced a valid assertion of CUE in the January 2008 rating decision, which granted service connection for schizophrenia, paranoid type, and assigned a 30 percent disability rating, effective May 25, 2007. Specifically, her general assertions that a higher disability rating should have been granted is not CUE for the purposes of this rating decision as she is simply requesting that VA reweigh or reevaluate the evidence. Crippen, 9 Vet. App. at 412. The appellant's contention that the Veteran' service-connected psychiatric disability should have been rated in excess of 30 percent does not show that either the correct facts, as they were known in January 2008, were not before the VA adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied regarding the schizophrenia, paranoid type. Furthermore, the evidence does not show that any error on the part of VA or its adjudicators in January 2008 was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made regarding the rating for this disability. See Damrel, 6 Vet. App. at 245. The Board is sympathetic to the appellant's loss and recognizes the Veteran's honorable service to this country. However, it is bound by the law and regulations governing the payment of VA benefits, which do not allow for the appellant, as the Veteran's surviving parent, to file a new or original claim for benefits on behalf of the Veteran after the Veteran has died. Accordingly, the appellant's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.