Citation Nr: 0806926	
Decision Date: 02/29/08    Archive Date: 03/06/08

DOCKET NO.  04-27 197	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Whether the veteran timely perfected an appeal of a September 
2002 rating decision denying entitlement to a total 
disability rating based on individual unemployability (TDIU) 
due to a service-connected disability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Coyle, Associate Counsel







INTRODUCTION

The veteran served on active duty from November 1970 to May 
1975. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2002 rating decision by 
the Atlanta, Georgia, Regional Office (RO) of the Department 
of Veterans Affairs (VA), which denied entitlement to the 
benefit currently sought on appeal.
	
The Board has recharacterized the issue as noted on the title 
page to consider the timeliness of the substantive appeal.  
The Board may address questions pertaining to its 
jurisdictional authority to review a particular case, 
including, but not limited to, determining whether notices of 
disagreement and substantive appeals are adequate and timely, 
at any stage in a proceeding before it, regardless of whether 
the agency of original jurisdiction (AOJ) addressed such 
questions.  When the Board, on its own initiative, raises a 
question as to a potential jurisdictional defect, all parties 
to the proceeding and their representatives, if any, will be 
given notice of the potential jurisdictional defects and 
granted a period of 60 days following the date on which such 
notice is mailed to present written argument and additional 
evidence relevant to jurisdiction and to request a hearing to 
present oral argument on the jurisdictional question.  The 
date of mailing of the notice will be presumed to be the same 
as the date stamped on the letter of notification. The Board 
may dismiss any case over which it determines it does not 
have jurisdiction.  38 C.F.R.               § 20.101(d).  

By letter dated November 30, 2007, the Board advised the 
veteran of its intent to consider the timeliness of his 
appeal with respect to entitlement to a TDIU.  The veteran 
was advised that he had 60 days from the date of the letter 
to respond.  No response was received.  Thus, the Board will 
consider the timeliness of the veteran's appeal.


FINDINGS OF FACT

1. In a September 24, 2002, rating decision, the RO denied 
entitlement to a TDIU. Notice of this decision was mailed to 
the veteran the same day. The veteran expressed disagreement 
with the decision, and the RO issued a statement of the case 
(SOC) on February 23, 2004.  On July 23, 2004, the RO 
received a VA Form 9.

2. The veteran's VA Form 9 was not received within one year 
of the September 24, 2002, notification of the decision being 
appealed or within 60 days of the February 23, 2004 SOC.


CONCLUSION OF LAW

The veteran did not timely perfect an appeal with regard to 
the September 2002 rating decision which denied entitlement 
to a TDIU.  38 C.F.R. §§ 20.101(d), 20.200, 20.302, 20.305. 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Timeliness of Substantive Appeal

An appeal consists of a timely filed notice of disagreement 
(NOD) in writing and, after a SOC has been furnished, a 
timely filed substantive appeal. 38 C.F.R.            § 
20.200.  

In a September 24, 2002, rating decision, the RO denied 
entitlement to a TDIU. The veteran was notified of this 
decision by letter dated September 24, 2002, and an NOD was 
received on February 27, 2003.  On February 23, 2004, the RO 
issued a SOC addressing the issue.

Except in the case of simultaneously contested claims, a 
substantive appeal must be filed within 60 days from the date 
that the AOJ mails the SOC to the appellant, or within the 
remainder of the 1-year period from the date of mailing of 
the notification of the determination being appealed, 
whichever period ends later.  The date of mailing of the SOC 
will be presumed to be the same as the date of the SOC and 
the date of mailing the letter of notification of the 
determination will be presumed to the same as the date of 
that letter for purposes of determining whether an appeal has 
been timely filed.  38 C.F.R. § 20.302(b)(1).  

Except in the case of simultaneously contested claims, if (i) 
a claimant submits additional evidence within 1 year of the 
date of mailing of the notification of the determination 
being appealed, and (ii) that evidence requires, in 
accordance with     § 19.131 of this title, that the claimant 
be furnished a SSOC, then the time to submit a substantive 
appeal shall end not sooner than 60 days after such SSOC is 
mailed to the appellant, even if the 60-day period extends 
beyond the expiration of the 1-year appeal period.  38 C.F.R. 
§ 20.302(b) (2).  

Here, the SOC was mailed on February 23, 2004; 60 days from 
that date was April 23, 2004.  The 1-year period from the 
date of the adverse determination was September 24, 2003, 
which would be the time or date that the veteran had until 
that time to perfect his appeal.  The Board did not identify 
any evidence submitted by the end of that 1- year period that 
would have required the issuance of a SSOC.

On review, the veteran provided his VA Form 9 on July 23, 
2004, which is after the expiration of the appeal period. 
Thus, the Board concludes that the veteran's appeal is not 
considered timely.

The Board has the authority to determine its own 
jurisdiction, see 38 C.F.R.            § 20.101(d), and under 
the circumstances of this case, dismisses the veteran's 
appeal with regard to entitlement to a TDIU as untimely.







ORDER

The issue of entitlement to a TDIU is dismissed because the 
veteran did not timely perfect his appeal.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs