BVA9506536 DOCKET NO. 92-00 656 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for residuals, gunshot wound, left thigh, with partial tibial nerve damage, currently rated 10 percent disabling, for accrued benefit purposes. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran upon whose service this claim is based served on active duty from September 1950 to April 1952. This case first came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a rating decision dated October 9, 1991, from the Los Angeles, California, Regional Office (RO). The notice of disagreement was received from the veteran in November 1991. The statement of the case was sent to the veteran in December 1991. The substantive appeal was received in December 1991. The veteran's appeal was remanded by the Board in December 1992. The veteran died in December 1992. His widow is in receipt of improved death pension benefits effective from January 1993. In a rating decision dated March 10, 1994, the widow's accrued benefits claim was denied. The veteran's widow also claimed service connection for the cause of the veteran's death; that claim was denied in March 1993. Her notice of disagreement was received in April 1993. A statement of the case addressing that claim was sent to her in May 1994. The case was previously before the Board and was remanded in October 1993. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's basic claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claimant has no issue in appellate status. FINDINGS OF FACT 1. The RO denied the claim for increased rating for residuals, gunshot wound, left thigh, with partial tibial nerve damage, currently rated 10 percent disabling, for accrued benefit purposes, in a rating decision dated March 10, 1994. A notice of disagreement has not been received from the veteran's widow regarding that claim. 2. The RO denied the claim for service connection for the cause of the veteran's death in March 1993. The claimant's notice of disagreement was received in April 1993. A statement of the case addressing that claim was sent to her in May 1994. A timely substantive appeal has not been received regarding that claim. CONCLUSIONS OF LAW 1. The issue of entitlement to an increased rating for residuals, gunshot wound, left thigh, with partial tibial nerve damage, currently rated 10 percent disabling, for accrued benefit purposes is dismissed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302 (1994). 2. The claim of entitlement to service connection for the cause of the veteran's death is not in appellate status and is dismissed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran upon whose service this claim is based served on active duty from September 1950 to April 1952. The claimant is his widow. I. Entitlement to an increased rating for residuals, gunshot wound, left thigh, with partial tibial nerve damage, currently rated 10 percent disabling, for accrued benefit purposes. The veteran perfected an appeal of a decision from the RO dated in October 1991, denying his claim for an increased rating of his service-connected residuals, gunshot wound, left thigh, with partial tibial nerve damage, rated 10 percent disabling. However, he died before appellate action on his appeal was completed. His widow seeks an increased rating for accrued benefit purposes. As the United States Court of Veterans Appeals (Court) has pointed out, the widow's claim for accrued benefits under 38 U.S.C.A. § 5121 (West 1991), although related to the veteran's claim for an increased rating, constitutes a separate claim from the veteran's claim for increased benefits. Zevalkink v. Brown, 6 Vet.App. 483 (1994) (en banc); Cates v. Brown, 5 Vet.App. 399 (1993). Therefore, her claim for accrued benefits must be developed and adjudicated and an appeal perfected by her in accordance with the requirements of 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1994). In this case, the widow's claim for accrued benefits was denied in a rating decision dated March 10, 1994. To date she has not submitted a timely notice of disagreement addressing that decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.201, 20.302 (1994). Therefore, that claim is not in appellate status, as there has not been a timely notice of disagreement, a statement of the case and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1994). Because the claim is not properly before the Board, the issue of an increased rating for residuals, gunshot would left thigh, with partial tibial nerve damage for accrued benefit purposes is dismissed. II. Entitlement to service connection for the cause of the veteran's death. In a decision dated in March 1993 the RO denied the widow's claim for service connection for the cause of the veteran's death. She filed a timely notice of disagreement regarding that decision in April 1993. The RO prepared and provided her with a statement of the case in May 1994. However, the record before the Board does not contain a timely filed substantive appeal addressing that claim. The law and regulations provide that an appeal consists of a timely filed written notice of disagreement, then a statement of the case, then a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1994). A substantive appeal setting out the specific arguments relating to errors of fact or law must be filed within 60 days from the date the RO mails the statement of the case, or within the remainder of the one-year period following the date of notification of the adverse decision, whichever date is later. 38 C.F.R. § 20.202, 20.302(b) (1994). Proper completion and filing of a substantive appeal are the actions the claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (1994). In this case, a substantive appeal of the denial of service connection for the cause of the veteran's death has not been received. Therefore, that claim is not in appellate status, and must be dismissed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302 (1994). ORDER The issues shown on the front page of this decision are dismissed. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.