Citation Nr: 0826555 Decision Date: 08/07/08 Archive Date: 08/18/08 DOCKET NO. 05-38 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the appellant's Substantive Appeal of the administrative decision dated November 2003 was timely submitted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The appellant had active service from March 1976 to October 1979. His discharge was under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 decision of the Philadelphia, Pennsylvania, regional office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The appellant did not submit a Substantive Appeal within one year of notice of the decision he wished to appeal, or within 60 days of the mailing of the Statement of the Case. CONCLUSION OF LAW The appellant's Substantive Appeal of the administrative decision dated November 2003 was not submitted in a timely manner. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.303, 20.305 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), does not apply in the instant case. At issue in this case is the timeliness of the appellant's Substantive Appeal pertaining to a November 2003 administrative decision of the RO that the character of the appellant's discharge was a bar to entitlement to VA benefits. The facts as to the date of receipt of the Substantive Appeal are not in dispute. The United States Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). Nonetheless, the December 2003 notification letter of the November 2003 administrative decision notified the appellant of his appellate rights. The December 2003 letter that accompanied the Statement of the Case informed the appellant that he must submit a Substantive Appeal in order to complete the his appeal, and it provided the time limits for submitting the Substantive Appeal. A March 2005 letter informed him he had not complied with these time limits and told him how he could appeal the determination that his appeal was untimely. Additionally, a March 2005 Statement of the Case told him why his February 2005 VA Form 9 was not timely filed. As this appeal requires a strictly legal determination, there is no reasonable possibility that further notification or assistance to the appellant would aid in substantiating his claim; a remand for such development is, therefore, not warranted. 38 U.S.C.A. § 5103A. The evidentiary record in the matter of timeliness is complete; the critical facts are determined by what was already received for the record and when it was received. The appellant contends that he submitted his Substantive Appeal within 60 days of the receipt of his Statement of the Case. He argues that although his statement of the case was dated December 3, 2004, the postmark on the envelope shows that it was not actually mailed until December 8, 2004. The appellant notes that he signed and dated his substantive appeal on February 8, 2005, which he believes was exactly 60 days after his Statement of the Case was mailed. Although his appeal was postmarked February 9, 2005, the appellant further notes that he is incarcerated, and has provided case law that holds a letter mailed from prison is presumed to be mailed the day it is turned over to the authorities to be mailed and not the date it is postmarked. The facts in this case are not in dispute. The RO, in an administrative decision dated November 24, 2003, determined that the character of the appellant's discharge was a bar to his request for VA benefits. The appellant was notified of this decision in a letter dated December 2, 2003. The appellant submitted a Notice of Disagreement with the November 2003 administrative decision in January 2004. A Statement of the Case was prepared for the appellant. The date of the Statement of the Case is December 2, 2004. The cover letter that accompanied the Statement of the Case is dated December 3, 2004. The appellant has provided a photocopy of what he states is the envelope used to mail the Statement of the Case, which shows a postmark dated December 8, 2004. The appellant submitted a VA Form 9, Appeal to Board of Veterans' Appeals, which he signed February 8, 2005. The envelope used to mail this appeal is postmarked February 9, 2005. The VA Form 9 is date stamped as received on February 11, 2005. The applicable laws and regulations state that an appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The Substantive Appeal must be filed within 60 days after mailing of the Statement of the Case, or within the remainder of the one year period from the mailing of notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing of the letter of notification of the determination will be presumed to be 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). Extensions of time for filing a Substantive Appeal may be granted for good cause. 38 C.F.R. § 20.303. When these rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this five day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b). Questions as to timeliness or adequacy of the Substantive Appeal shall be determined by the Board. The Board may dismiss any appeal over which it determines it does not have jurisdiction. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.101. In the current appeal, the 60 day period from the mailing of the Statement of the Case clearly ends later than the one year period from the date of notification of the decision. Moreover, there is no evidence or contention that the veteran requested an extension of time in which to submit his Substantive Appeal. Therefore, the sole question that must be determined by the Board is whether or not the veteran submitted his Substantive Appeal within 60 days of the mailing of the Statement of the Case. After a review of the record and careful consideration of the applicable laws and regulations, the Board finds that the veteran did not submit his Substantive Appeal within 60 days of the mailing of the Statement of the Case. By regulation, the date of the mailing of the Statement of the Case is presumed to be the same as the date of the Statement of the Case. The cover letter for the Statement of the Case is dated December 3, 2004. The veteran had 60 days from this date in which to submit his Substantive Appeal. The earliest possible date for the mailing of the Substantive Appeal would be February 8, 2005, which was the date it was signed by the veteran. The postmark of the envelope is February 9, 2005. Either date is well beyond the 60 day period from December 3, 2004 that is mandated by regulation and must be considered untimely. 38 C.F.R. § 20.302(b). The veteran contends that his Substantive Appeal should have been considered mailed the moment he delivered it to prison authorities to be forwarded to the RO. He cites to Houston v. Lack, 487 U.S. 266 (1988) in support of this mailbox rule. That case involved the timeliness of the filing of a petition for habeas corpus. The Court does not appear to have considered whether or not the rule noted in Houston applies to Substantive Appeal of a RO decision. However, in Rios v. Nicholson, 20 Vet. App. 104 (2006), the Court held that the mailbox rule did not apply to a notice of an appeal of a Board decision on the basis that the provisions of the statute that outlined what would be considered a timely notice of appeal did not allow for application of the common law mailbox rule. The Board notes that similarly, the provisions of the 38 U.S.C.A. § 7105(d)(3) do not make mention of the mailbox rule. However, as will be demonstrated, whether or not the mailbox rule is applied in this case does not affect the outcome of the appeal. The appellant also argues that the postmark of the envelope used to mail his Statement of the Case is dated December 8, 2004, and that this should be considered the beginning of the 60 day period allowed to submit the Substantive Appeal. The Board notes that it is bound by the regulation that states the date of the Statement of the Case must be presumed to be the date is was mailed. 38 C.F.R. § 20.302(b). However, even the use of the December 8, 2004 date does not affect the outcome of this appeal. If December 8, 2004 is used as the date of mailing of the Statement of the Case and February 8, 2005 is used as the date of the mailing of the Substantive Appeal, the first day of the 60 day period would be December 9, 2004. A review of the 2004 and 2005 calendars shows that the 60 day period would then end on February 6, 2005. As this date fell on a Sunday, the period is extended to the next work day, which was Monday, February 7, 2005. This Monday was not a legal holiday. Therefore, the 60 day period in which to mail the Substantive Appeal ended the day before the appellant signed the appeal and presumably gave it to prison authorities to be mailed on February 8, 2005. Even if the dates are interpreted in the manner that the appellant desires, he still did not submit his Substantive Appeal in a timely manner. ORDER The appellant's Substantive Appeal of the administrative decision dated November 2003 was not timely submitted, and his appeal is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs