Case A26035254

Summary

The veteran, who served from April 1968 to March 1970, appealed the denial of an earlier effective date for service connection for bladder cancer and the denial of a 100 percent rating for the period prior to September 8, 2018. The veteran's bladder cancer was initially diagnosed in 2010 and treated in 2010 and 2016-2017. Service connection for bladder cancer was first awarded in January 2024, effective August 1, 2022. A subsequent Board decision granted an earlier effective date of March 17, 2018. The appellant contended for an effective date of August 25, 2013. The Board found that the May 2016 rating decision denying service connection for bladder cancer became final because the veteran did not file a timely notice of disagreement or request the provisional decision be made final. The Board applied the presumption of administrative regularity, finding no evidence of incorrect mailing or return of mail. The March 2018 supplemental claim was the earliest communication to reopen the claim, thus the effective date of March 7, 2018, was upheld. Regarding the 100 percent rating, the Board acknowledged the April 2018 DBQ indicating a 2010 diagnosis and treatment, and a November 2017 cystoscopy showing no tumors. However, a November 2023 medical opinion and the death certificate listing urinary tract infection and septic shock as causes of death suggested active malignancy. Resolving doubt in the veteran's favor, the Board granted a 100 percent rating for bladder cancer from March 7, 2018, to September 8, 2018. The TDIU claim was dismissed as moot because the veteran received a 100 percent schedular rating for bladder cancer during the period in question.

Rationale

Presumption of administrative regularity applied; No evidence of incorrect mailing or return of mail; Failure to file timely notice of disagreement or request finality

Full Decision Text

Citation Nr: A26035254
Decision Date: 04/15/26	Archive Date: 04/15/26

DOCKET NO. 250124-504988
DATE: April 15, 2026

ORDER

Entitlement to an effective date prior to May 7, 2018, for service connection for bladder cancer, for accrued benefit purposes is denied.

For the period from March 7, 2018, until September 8, 2018, a 100 percent rating for the Veteran's bladder cancer, for accrued benefits purposes is granted.

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot.

FINDINGS OF FACT

1. The May 2016 rating decision denying service connection for bladder cancer became final when the Veteran did not file a timely notice of disagreement.

2. The Veteran filed a supplemental claim for service connection for bladder cancer on March 7, 2018, which resulted in a grant of benefits effective the same date.

3. For the period from March 7, 2018, until September 8, 2018, the Veteran had active malignancy or recurrence of his bladder cancer manifested by a urinary tract infection and septic shock. 

4. The Veteran had a single service-connected disability rated as 100 percent disabling, with no additional disability or disabilities independently rated as 60 percent disabling.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to March 7, 2018, for service connection for bladder cancer, for accrued benefit purposes have not been met. U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

2. For the period from March 7, 2018, until September 8, 2018, the criteria for a 100 percent rating for bladder cancer, for accrued benefits purposes have been met. 38 U.S.C. § 1155, 7107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.115b, 20.900, Diagnostic Code (DC) 7528. 

3. The claim for entitlement to a TDIU is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from April 1968 to March 1970. He died in September 2018. His surviving spouse has been properly substituted as the appellant in the appeal.

The Veteran's claim for service connection for bladder cancer was before the Board in January 2022 when it was remanded for further development. In January 2024, the agency of original jurisdiction issued the rating decision on appeal.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the January 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an effective date prior to May 7, 2018, for service connection for bladder cancer, for accrued benefit purposes 

The appellant contends that an earlier effective date is warranted for the grant of service connection for the Veteran's bladder cancer.


 consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to an effective date prior to May 7, 2018, for service connection for bladder cancer, for accrued benefit purposes 

The appellant contends that an earlier effective date is warranted for the grant of service connection for the Veteran's bladder cancer.

Initially, the Board notes that the Veteran was first awarded service connection for bladder cancer in a January 2024 rating decision, effective August 1, 2022, the date of enactment of the PACT Act. Then, in a Board decision issued in April 2024, the Veteran was awarded an effective date prior to August 10, 2022, based on evidence establishing that his bladder cancer was causally related to service prior to the enactment of the PACT Act. See April 2024 Board decision. In an April 2024 Board decision, an effective date of March 17, 2018, was assigned based on the date of receipt of a Supplemental Claim. In this case, the appellant contends that an effective date of August 25, 2013, is warranted.

Turning to the relevant law, the effective date of an award shall be the first day following discharge, if the claim is filed within one year; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). A claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b).

For claims decided prior to February 19, 2019, a claimant must file a notice of disagreement within one year from the date that notice of a rating decision is mailed; otherwise, the rating decision will become final. 38 C.F.R. §§ 19.52 (a), 20.1103. If a timely, valid notice of disagreement is filed in response to a rating decision, that rating decision cannot be considered a final decision; instead, the claim it decided will remain pending until AOJ issues a statement of the case (SOC). Then, a substantive appeal (VA Form 9) must be filed either: (a) within 60 days from the date on which the AOJ mailed the SOC to the Veteran or (b) within the balance of the one-year period following the date of mailing of the rating decision, whichever period ends later. 38 C.F.R. § 19.52 (b). If the Veteran does not file a timely VA Form 9, then the underlying rating decision becomes final. 38 C.F.R. § 20.1103. Therefore, a determination on a claim by the AOJ of which the claimant is properly notified is final if an appeal is not perfected as prescribed in 38 C.F.R.§ 19.52.

By way of history, the Veteran initially filed a claim for service connection for bladder cancer and hypertension in October 2011. The claim was denied in an August 2013 provisional rating decision. Of note, at the time of the August 2013 decision, VBA Letters 20-13-05 and 20-13-07 authorized the use of provisional rating decisions that are not subject to appeal, and which are not accompanied by appeal rights. The Veteran was notified of the August 2013 decision by letter dated August 30, 2013. The cover letter notified that Veteran that if he "want[ed] to receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement as follows: 'All necessary evidence was considered by VA. I request that this provisional decision be made final." Copies of the August 2013 rating decision and notice letter were sent to both the Veteran and his representative of record at the time (The American Legion) and were not returned as undeliverable.  

The Board notes that the Veteran submitted a statement in April 2014 expressing his disagreement with the August 2013 decision and requesting a hearing with a decision review officer (DRO). The Veteran was afforded said hearing in September 2015. However, there is no indication that he requested that the provisional decision be made final. The Veteran, his prior representative, the appellant, nor her attorney,
, send VA a signed statement as follows: 'All necessary evidence was considered by VA. I request that this provisional decision be made final." Copies of the August 2013 rating decision and notice letter were sent to both the Veteran and his representative of record at the time (The American Legion) and were not returned as undeliverable.  

The Board notes that the Veteran submitted a statement in April 2014 expressing his disagreement with the August 2013 decision and requesting a hearing with a decision review officer (DRO). The Veteran was afforded said hearing in September 2015. However, there is no indication that he requested that the provisional decision be made final. The Veteran, his prior representative, the appellant, nor her attorney, have contended otherwise. Additionally, a January 2016 correspondence from the RO indicated that the issue of service connection for bladder cancer could not be appealed, as the August 2013 rating decision was provisional, and the Veteran had not been notified of his due process rights. See Correspondence dated June 25, 2016.

In May 2016, the RO then issued a rating decision denying the claim. Notably, the introduction of the rating decision again informed the Veteran and his representative that the prior August 2013 rating decision was provisional, and thus, no appeal had been accepted for his bladder cancer claim. The Veteran was notified of the same in a letter dated May 27, 2016. Copies of the May 2016 rating decision and notice letter were sent to both the Veteran and his representative of record at the time (The American Legion) and were not returned as undeliverable.

In August 2016, the Veteran appointed Robert Walsh, Esq., as his representative. Notably, a NOD was filed expressing disagreement with the denial of a claim for service connection for a left leg disability that was adjudicated in the May 2016 rating decision; however, the NOD did not include the bladder cancer claim. To that extent, no disagreement was expressed with the May 2016 decision denying the bladder cancer claim in the one-year period following the date of the May 2016 notification letter.

Then, in March 2018, the Veteran filed a VA 21-526b, Supplemental Claim, seeking to reopen his claim for service connection for bladder cancer. Along with the claim, the Veteran's attorney submitted a statement indicating that neither he, nor the Veteran, had received a copy of the prior May 2016 rating decision denying the claim for service connection for bladder cancer. Additionally, he requested that VA reissue the decision.

Here, the Board points out that there is a presumption of administrative regularity under which Government officials are presumed to "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). For the presumption of regularity to attach, VA must have correctly mailed notice to the latest address of record. See Mindenhall v. Brown, 7 Vet. App. 271 (1994).

This includes a presumption that "the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision was issued." Woods v. Gober, 14 Vet. App. 214, 220 (2000). If a claimant alleges nonreceipt of a VA notice letter, clear evidence rebutting the presumption of regularity "mandates not only a declaration by the appellant of nonreceipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130 (2007).

The presumption of regularity is not absolute and may be rebutted. An appellant's bare statement of non-receipt of mail, without more, is not the type of "clear evidence" that can rebut the presumption of regularity.  However, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003).

In this case, there is no evidence that the May 2016 decision was mailed to the wrong address or returned as undeliverable. Notably, notification of the decision was sent to the same address that all other correspondences of record were mailed to during that timeframe. Additionally, a copy of the rating decision was also sent to the American Legion, who was the Veteran's representative at the time the decision was issued. See Notification letter, dated May 26, 2016.
) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003).

In this case, there is no evidence that the May 2016 decision was mailed to the wrong address or returned as undeliverable. Notably, notification of the decision was sent to the same address that all other correspondences of record were mailed to during that timeframe. Additionally, a copy of the rating decision was also sent to the American Legion, who was the Veteran's representative at the time the decision was issued. See Notification letter, dated May 26, 2016. Notably, Robert Walsh, Esq., was not appointed as the Veteran's attorney until August 2016, and as such, he would not have received a copy of the May 2016 rating decision.

Additionally, the Board notes that the evidence of record contradicts the assertion that neither the Veteran nor his representative were aware of the issuance of the May 2016 decision. As discussed above, the Veteran filed a NOD as to a left leg disability that was addressed in the same May 2016 decision in question. See October 2016 NOD.

In consideration of the foregoing, the Board finds that the presumption of regularity has not been rebutted. Accordingly, the Board also finds that the Veteran failed to submit a notice of disagreement within one year from the date that notice of the May 2016 rating decision was mailed, and thus, the rating decision became final. 38 C.F.R. §§ 19.52 (a), 20.1103.

As noted above, the current effective date is assigned based on the date of receipt of the March 7, 2018, supplemental claim. Following the final May 2016 rating decision, the March 2018 supplemental claim application is the earliest communication expressing the Veteran's desire to reopen the claim. Accordingly, there is no legal basis to assign an effective date prior to the March 7, 2018, date already assigned and the appellant's claim must be denied. 

2. For the period from March 7, 2018, until September 8, 2018, a 100 percent rating for the Veteran's bladder cancer, for accrued benefits purposes

The appellant contends that a compensable rating is warranted for the Veteran's bladder cancer for the period prior to August 10, 2022.

Initially, the Veteran was awarded a 100 percent rating for bladder cancer, effective August 10, 2022. Following the Board's grant of an earlier effective date for bladder cancer in the April 2024 Board decision, the AOJ assigned the Veteran a noncompensable rating for bladder cancer in an April 2024 rating decision for the period prior to August 10, 2022. The appellant now challenges the noncompensable rating assigned for the period prior to August 10, 2022.

Here, the Board notes that the Veteran passed away September 8, 2018. Therefore, the period considered for appellate review is from date of service connection on March 7, 2018, until the date of the Veteran's death on September 8, 2018.

The Veteran's bladder cancer was rated under Diagnostic Code 7528. Under that code, a rating of 100 percent is assigned for active malignancy. Following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has no local reoccurrence or metastasis, the disability is rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b.

In this case, the Board acknowledges that an April 2018 Disability Benefits Questionnaire (DBQ) indicates that the Veteran was diagnosed with bladder cancer in 2010; that the condition was treated in May 2010, June 2010, November 2016, and January 2017; and that a November 2017 cytoscopy showed no tumors. The examining physician indicated that the Veteran had no residuals of bladder cancer or voiding dysfunction.

However, the Board notes that the Veteran's bladder cancer was found to be a contributory cause of his death, as indicate by Dr. S.B. in a November 2023 medical opinion. See Medical Treatment Record - Non-Government Facility, received November 14, 2023. In relevant part, his death certificate lists urinary tract infection and septic shock as his cause of death.
 Veteran was diagnosed with bladder cancer in 2010; that the condition was treated in May 2010, June 2010, November 2016, and January 2017; and that a November 2017 cytoscopy showed no tumors. The examining physician indicated that the Veteran had no residuals of bladder cancer or voiding dysfunction.

However, the Board notes that the Veteran's bladder cancer was found to be a contributory cause of his death, as indicate by Dr. S.B. in a November 2023 medical opinion. See Medical Treatment Record - Non-Government Facility, received November 14, 2023. In relevant part, his death certificate lists urinary tract infection and septic shock as his cause of death. The Board finds that these conditions, coupled with Dr. S.B.'s findings related to the Veteran's cause of death, suggests active malignancy or recurrence of his service-connected bladder cancer. 

As discussed above, a rating of 100 percent is assigned for active malignancy. Resolving doubt in the Veteran's favor, the Board finds that a 100 percent rating is warranted for the Veteran's bladder cancer from March 7, 2018, until September 8, 2018. Despite the 100 percent rating assigned from August 10, 2022, the Board finds no legal authority to grant a compensable rating for the Veteran's bladder cancer posthumously. To this extent, the Veteran's claim is granted.

3. Entitlement to a total disability rating based on individual unemployability (TDIU)

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

A claim for a TDIU is not a separate claim for benefits. In Rice v. Shinseki, the Court held that a claim for a TDIU is "part of the claim for benefits of the underlying disability" regardless of whether the claim is raised expressly or reasonably raised by the record. 22 Vet. App. 447, 453-54 (2009).  As such, the issue of entitlement to a TDIU under Rice is not limited to claims reasonably raised by the record. Thus, the Board must adjudicate any claim for a TDIU in accordance with Rice when it has been raised during the initial adjudication of a claim or a claim for an increased rating for an underlying disability.

Here, the Board finds that a claim for a TDIU was raised under Rice during the initial adjudication of the Veteran's claim for service connection, and later an increased rating for bladder cancer. As discussed above, the period on appeal dates back to the filing of the Veteran's supplemental claim for service connection for bladder cancer filed on May 7, 2018.

With the total 100 percent rating for the Veteran's bladder cancer granted herein, he is in receipt of a total disability rating from May 7, 2018, until his death on September 8, 2018. 

The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent schedular disability rating means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).

However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability
finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).

However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on service-connected disabilities other than the disability that is rated at 100 percent. Id. at 280 (analyzing 38 U.S.C. § 1114(s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999).

In this case, SMC is not applicable. Throughout the entire appeal period, the Veteran has had one service-connected disability rated at 100 percent disabling. While the Veteran was service-connected for other disabilities during his lifetime, as he did not have another service-connected disability independently rated as 60 percent disabling or more, SMC is not warranted. Accordingly, the appeal for entitlement to a TDIU is dismissed as moot. See 38 U.S.C. § 7105; 38 C.F.R. § 20.101.

 

 

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Marsh II, 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.