Citation Nr: 22015156 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-23 312 DATE: March 16, 2022 ORDER The appeal as to whether a March 2017 substantive appeal (VA Form 9) was timely received is dismissed as moot. REMANDED Entitlement to an effective date prior to August 23, 2010 for the grant of service connection for cause of death is remanded. FINDING OF FACT The Department of Veterans Affairs (VA) waived the timeliness of a March 2017 substantive appeal (VA Form 9). CONCLUSION OF LAW The criteria for dismissal of the appeal as to whether a March 2017 substantive appeal was timely received have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 19.20, 19.21, 19.22 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1993 to October 2001. He passed away on October 1, 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision and an April 2017 administrative decision by VA. In October 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Whether a March 2017 VA Form 9 received after a December 2016 statement of the case (SOC) was timely received. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Under the legal framework in place prior to the enactment of the Appeals Modernization Act (AMA), appellate review is initiated by the filing of a notice of disagreement (NOD) and completed by the filing of a substantive appeal after an SOC has been issued. A substantive appeal must be filed within 60 days from the date that the Agency of Original Jurisdiction (AOJ) mails the SOC to the veteran, or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.21, 19.22. VA may waive its objection to an untimely substantive appeal. Failure to file a timely substantive appeal does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37, 42 (2009). In an October 2015 rating decision, the AOJ granted service connection for cause of death. The appellant filed a notice of disagreement (NOD) to the effective date assigned for the grant of cause of death in June 2016, and the AOJ issued an SOC in December 2016. VA did not receive a substantive appeal until March 2017, and the AOJ ruled that the appellant's VA Form 9 was not timely. See April 2017 administrative decision. The appellant appealed the April 2017 decision ruling that her March 2017 VA Form 9 was not timely. Eventually, the matter came before the Board, but the Board did not take testimony on the issue of whether the March 2017 substantive appeal was timely. Rather, the Board stated that the issue before the Board was entitlement to an earlier effective date for the grant of service connection for cause of death. See October 2021 Board hearing. By taking testimony on the issue of entitlement to an earlier effective date for the grant of service connection for cause of death, the Board effectively waived the timeliness of the March 2017 substantive appeal. Because the timeliness issue has been waived, the matter is now moot. Thus, the issue is dismissed. REASONS FOR REMAND Entitlement to an effective date prior to August 23, 2010 for the grant of service connection for cause of death. This matter was last adjudicated by the AOJ in December 2016. While there was previously a statute that provided that evidence submitted by a claimant is presumed waived from AOJ consideration, see 38 U.S.C. § 7105(e) (2012), such law is no longer in place as of 2018. See 38 U.S.C. § 7105 (2018). In November 2021, the appellant submitted two documents that she asserts were valid NODs to a March 2008 administrative decision that denied service connection for cause of death. A January 2009 statement was previously submitted in March 2017 and thus waiver of AOJ consideration is presumed. However, she also submitted a January 2009 VA Form 21-0958, which was not previously of record and has not been considered by the AOJ. This document is relevant to the matter of whether an earlier effective date is warranted for the grant of service connection for cause of death because it is an asserted NOD to a prior decision. Because waiver is not presumed and the appellant requested that this case be remanded back to the AOJ for its consideration, see March 2022 correspondence, this issue must be remanded for consideration of new evidence by the AOJ. The matter is REMANDED for the following action: The AOJ should readjudicate the matter of entitlement to an effective date prior to August 23, 2010 for the grant of service connection for cause of death, considering all evidence of record. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.