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USCAVC No. 19-0517 Nailos V McDonough Appeal from BVA: Issue EED Aid and Attendance

USCAVC No. 19-0517 Nailos V McDonough Appeal from BVA: Issue EED Aid and Attendance

USCAVC No. 19-0517 Joan Nailos, Appellant, V. Denis McDonough On Appeal from BVA Argued June 17, 2021, Decided on August 10, 2021

Issue EED Aid and Attendance

The appellant, Joan Nailos, surviving spouse of the veteran, William F. Nailos, appeals through counsel (1) an October 22, 2018, Board of Veterans’ Appeals (Board) decision that denied an effective date prior to May 30, 2017, for the award of aid and attendance benefits. Record (R.) at 2-9. (2) This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to determine under what circumstances 38 C.F.R. § 3.402(c)(1) permits an effective date for the award of increased dependency and indemnity compensation (DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid and attendance benefits. (3) For the following reasons, the Court concludes that § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the date of the DIC claim, i.e., there is a retroactive award of DIC. The Court will thus affirm the Board’s decision.

Board Decision

In the October 2018 decision on appeal, the Board first acknowledged that it had previously denied entitlement to an effective date prior to November 2009 for the award of DIC and that the Court had affirmed that decision. R. at 4. Turning to the issue of an effective date prior to May 2017 for the award of aid and attendance benefits, the Board acknowledged the appellant’s contention that she was entitled to a June 2015 effective date based on when she was injured and became disabled. Id. After explaining the rules governing the effective date for an award of aid and attendance benefits, the Board concluded that the exception found in § 3.402(c)(1) was inapplicable. R. at 5. The Board explained that “the [a]ppellant has been receiving DIC since November 2009; therefore, the provisions regarding retroactive aid and attendance based on an award of retroactive DIC are not applicable.” Id. Applying the general effective date rule, the Board found that the appellant had filed an intent to file a claim on May 30, 2017, and that “[t]he record does not contain any communication from the [a]ppellant that may be reasonably construed as a formal claim or an intent to file a claim for regular aid and attendance received by VA prior to this date.” R. at 6. The Board then determined that “[e]ven assuming she met the criteria for regular aid and attendance as early as June 2015, she did not submit a claim for benefits with VA at that time, and the date the claim was received by VA is the later of the two dates.” R. at 7. Accordingly, the Board concluded that there was “no basis for awarding an earlier effective date.” Id.

Federal Circuit; Presumption of Regularity; We reject Mr. Cones’ argument that if the presumption of regularity is rebutted, the VA is required to provide “direct” evidence of mailing. It is well established that circumstantial evidence (here, evidence of the VA’s mailing procedures) can be sufficient to prove a fact; direct evidence is not necessary. See, e.g., United States v. C.H. Robinson Co., 760 F.3d 1376, 1382 (Fed. Cir. 2014); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1318 (Fed. Cir. 2009); Moleculon Rsch. Corp. v. CBS, Inc., 793 F.2d 1261, 1272 (Fed. Cir. 1986);

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit



Appeal from the United States Court of Appeals for Veterans Claims in No. 18-5283, Judge Joseph L. Toth.
__________ Decided: September 2, 2020 __________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, Providence, RI, for claimant-appellant. Also represented by APRIL DONAHOWER, AMY F. ODOM. SOSUN BAE, Commercial Litigation Branch, Civil Divi-sion, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by ETHAN P. DAVIS, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.; MEGHAN ALPHONSO, BRIAN D. GRIFFIN, Office of Case: 19-2209 Document: 43 Page: 1 Filed: 09/02/2020
General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before DYK, O’MALLEY, and REYNA, Circuit Judges.
DYK, Circuit Judge.
Christopher Cones appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) dismissing his appeal as untimely. We affirm.
Mr. Cones served in the Army from March to May 1992. In November 2016, the Board of Veterans’ Appeals (“Board”) awarded Mr. Cones benefits under Diagnostic Code 5201 for a right shoulder disability but, in a decision dated March 5, 2018, denied Mr. Cones’ claim to a separate disability rating under Diagnostic Code 5202.1 Diagnostic Code 5201 relates to limitation in the motion of an arm, whereas Diagnostic Code 5202 relates to other impairment of the humerus. 38 C.F.R. § 4.71a.
On September 24, 2018, 203 days after March 5, Mr. Cones filed a notice of appeal to the Veterans

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