Citation Nr: 0725309 Decision Date: 08/15/07 Archive Date: 08/22/07 DOCKET NO. 04-41 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether a substantive appeal was timely filed with regards to a February 2003 rating that awarded an effective date retroactive to August 2, 2000 for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from July 1963 to August 1966. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which determined that a timely appeal had not been filed from a February 2003 rating that had awarded an effective date retroactive to August 2, 2000 for TDIU. Although the veteran had requested a local personal hearing, a report of contact dated June 21, 2007 reflects that the veteran withdrew that request; the record also reflects that the RO undertook a comprehensive verification that the person with whom contact was made was in fact the veteran. Accordingly, there is no basis to delay adjudication of the claim. See 38 C.F.R. § 20.702 (2007). FINDINGS OF FACT 1. Pursuant to a February 2003 rating, the veteran was awarded a retroactive effective date of August 2, 2000 for a total rating based on individual unemployability (TDIU); notice of that determination was mailed on March 4, 2003 to the veteran's address of record, and a Notice of Disagreement was received in September 2003. A Statement of the Case was issued on December 2, 2003. 2. The veteran did not file a Substantive Appeal to perfect an appeal, and the February 2003 rating decision became final. 3. The veteran is not mentally incompetent, and does not have a guardian appointed to act on his behalf. CONCLUSION OF LAW The veteran failed to submit a timely appeal as to the February 2003 determination as to the effective date for the award of TDIU. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. § 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board recognizes that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA), is currently in effect. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds, however, that the statute and the regulations are inapplicable in this case. VA's General Counsel issued a decision, which found that under 38 U.S.C. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Further, under 38 U.S.C.A. § 5103A, VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 2004); see also Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (Court held that the VCAA had no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter). As this claim is limited to a retroactive review of the evidence of record and is decided as a matter of law, the Board finds that the duty to notify and assist provisions of the VCAA are inapplicable. Morris v. Principi, 239 F.3d 1292, 1295 (Fed. Cir. 2001); VAOPGCPREC 5-2004 (June 23, 2004). Therefore, in a case such as this, there is no additional information or evidence that could be obtained to substantiate the claim, for the reasons stated above. As such, the Board finds that no prejudice accrues to the veteran in proceeding to the merits of his claim at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993) (the Board must consider whether a claimant will be prejudiced by addressing a question that has not been addressed by the RO). Factual Background The veteran sustained injuries in Vietnam when an explosion caused a skull fracture resulting and chronic brain syndrome. The veteran was also service connected for several other disabilities (noncompensable). In June 1970, all of his service-connected disabilities, when combined, were evaluated as 50 percent disabling. In October 1998, the veteran requested an increased evaluation. In April 1999, the RO requested that veteran be more specific as which disorder had increased in severity together with any supporting evidence. He was informed that if such was not received within one year from April 1999, he could not be paid prior to the date of receipt. In February 2000, the veteran not yet having responded, he was again notified that unless he submitted evidence by April 2000, benefits could not be retroactive and benefits "can't start before the date we receive your claim." On August 2, 2000, the RO received the veteran's claim that he was unable to work due to his service connected organic brain syndrome. After a VA examination was conducted, the RO continued the 30 percent evaluation for chronic brain syndrome pursuant to a September 2000 rating. The veteran was notified by letter dated October 23, 2000. In February 2001, the veteran filed for entitlement to service connection for post traumatic stress disorder (PTSD) as well as for an increased rating for skull loss. A VA examination was conducted in January 2002, and, pursuant to a February 2002 rating, service connection for PTSD, evaluated as 50 percent disabling, was established, effective from February 2001. The evaluation for skull loss was continued. A resulting combined rating of 70 percent was achieved. The issue of TDIU was deferred for further development. Pursuant to a June 2002 rating, TDIU was awarded effective from February 5, 2001. In September 2002, the veteran filed for an earlier effective date, requesting that the award be made retroactive to when he was separated from service in 1966. Pursuant to a February 2003 rating, the RO, in recognition of the claim filed on August 2, 2000, awarded a retroactive effective date of August 2, 2000 for TDIU. Notice of that determination was issued on March 4, 2003. A letter from the veteran's Congressman, received in September 2003, was regarded as a Notice of Disagreement. A Statement of the Case was issued on December 2, 2003. Correspondence concerning the February 2003 rating was received on March 17, 2004, in which a new representative filed a Power of Attorney and noted on a statement in support of claim that it was pursuing the earlier effective date claim "if still eligible to file his form-9 [substantive appeal.]" That correspondence was received more than 60 days after issuance of the Statement of the Case and more than one year after the adverse rating determination that was issued on March 4, 2003. A substantive appeal was not filed. The veteran's spouse wrote to her Congressman, who, in turn, corresponded to the VA. That correspondence was regarded as a claim to accept the appeal as timely; that correspondence was received on June 10, 2004. The veteran's spouse acknowledged that they had received the December 2003 Statement of the Case, but the veteran misread the letter, believing he had a year to appeal. Also included with the package of material provided to the Congressman was a letter dated in April 2004 from the veteran's representative to the effect that the veteran had failed to timely appeal the earlier effective date determination. In June 2004, the RO determined that a timely appeal had not been filed from the February 2003 rating that had revised the effective date for the award of TDIU from February 2001 to an effective date retroactive to August 2, 2000, and the present appeal has ensued. Analysis An appeal consists of a timely filed Notice of Disagreement (NOD), in writing, and after an Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A claimant, or his representative, must file a NOD with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him; otherwise, that determination becomes final. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the one-year period from the date of the mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b); see also 38 U.S.C.A. § 7105 (d)(3). The argument is implicitly advanced that the veteran should be excluded from timely filing requirement because he received the notice during a stressful time and misread the notice. Under certain circumstances, a statutory filing period may be equitably tolled due to conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable relief is granted rarely, such as in a case where a claimant actively pursued judicial remedies but has filed a defective pleading or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Pfau v. West, 12 Vet. App. 515, 517 (1999), citing Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The Federal Circuit specifically held in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require misconduct (such as trickery); however, Bailey does require the appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). The record does not establish a basis for equitable tolling on such a basis in this case. In Barrett v. Principi, 363, F.3d 1316 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that, for the purposes of determining whether a claimant timely appealed to that particular court, equitable tolling is available where a veteran is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. Id. at 1321. Here, the record contains no indication that the veteran was so incapacitated by mental illness that he could not manage his affairs, to include being unable to file the required evidence or forms. The Board observes that 38 C.F.R. § 3.353(a) defines a mentally incompetent person as "one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation." The veteran does not have a guardian appointed for him, and VA examinations of August 2000 and January 2002 found the veteran competent to manage his benefit payments without restriction. There is no evidence of record that the veteran was deemed to be mentally incompetent during the period under consideration. The record contains no indication that the veteran was so incapacitated by mental illness that he could not manage his affairs, to include being unable to file the substantive appeal. Cf. McPhail v. Nicholson, 19 Vet. App. 30, 33 (2005). In the absence of specific evidence of profound mental illness, the Board rejects the contention that his mental problems form a basis for equitable tolling. See Barrett, 363 F. 3d at 1321 [a medical diagnosis alone or vague assertions of mental problems will not suffice]. Moreover, in this case, the veteran never filed a substantive appeal with the February 2003 determination, as opposed to filing an untimely substantive appeal; in such circumstances, the doctrine of equitable tolling may not apply at all. See McPhail, supra, at 34 ("Court has been unable to find any case where equitable tolling was applied to performing an action on a timely basis where the action had not ultimately been performed."). Because the veteran did not timely file a substantive appeal regarding the February 2003 rating determination issued by the RO, the Board lacks jurisdiction to adjudicate the issue on the merits. His appeal must be dismissed. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 19.4, 20.200, 20.201, 20.202, 20.302 (2007). After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule applies only when the positive and negative evidence renders a decision "too close to call"). ORDER The appeal of the February 2003 determination of an effective date of August 2, 2000 for TDIU is dismissed. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs