Citation Nr: 0732009 Decision Date: 10/11/07 Archive Date: 10/23/07 DOCKET NO. 04-33 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Timeliness of the veteran's substantive appeal concerning his claims of entitlement to service connection for a right shoulder condition and a right Achilles tendon disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Morgan, Associate Counsel INTRODUCTION This case has come before the Board of Veterans' Appeals (Board) on appeal from a determination issued in February 2004 by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (the RO). Procedural history The veteran served on active duty from June 1944 until October 1945. In a December 2000 rating decision, service connection was denied for service connection for a right shoulder disability and for a right Achilles tendon condition. The RO sent the veteran notice of the rating decision and of his appellate rights in a letter dated January 2, 2001. The veteran filed a timely notice of disagreement (NOD). On December 23, 2002, the RO mailed a statement of the case (SOC) to the veteran. A date stamp reflects receipt by the RO on February 25, 2003 of a VA Form 9 (substantive appeal) as to these two issues. In February 2004, the RO determined that an appeal had not been timely filed. The veteran filed a timely NOD as to the February 2004 determination, and the RO issued a SOC in August 2004. See 38 C.F.R. § 19.34 (2006) [the matter of the timeliness of filing of a substantive appeal is itself an appealable issue, and if a claimant or representative protests an adverse determination by the agency of original jurisdiction, the claimant should be furnished with a SOC]. The veteran perfected his appeal as to the timeliness of the previous appeal by way of a VA Form 9 received in September 2004. For good cause shown, the Board granted the veteran's motion to have this claim advanced on its docket in September 2007. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (c) (2007) Clarification of the issue on appeal The RO treated the veteran's February 25, 2003 VA Form 9, although not timely as a substantive appeal, to be a new claim of entitlement to service connection. In February 2005, entitlement to service connection of a right shoulder condition was granted, effective as of February 25, 2003. Although service connection of one of the underlying claims has been granted, the issue of the timeliness of the appeal as to the original claim remains in appellate status as there remains a case or controversy. The February 2005 rating decision does not represent a full grant of the benefit sought, that is to say entitlement to service connection of the right shoulder condition effective as of February 29, 2000, the date of the receipt of the claim which is the source of the disputed appeal. Accordingly, the grant of service connection does not change the posture of this appeal. Issues not on appeal In a March 2007 rating decision, the RO denied the veteran's claim of entitlement to an increased disability rating for his service-connected right shoulder disability. Also in the March 2007 rating decision the RO denied the veteran's request to reopen his previously denied claims of entitlement to service connection of a low back, left shoulder and neck conditions, each claimed as secondary to his service- connected shoulder condition. To date, the veteran has not disagreed with any aspect of that decision. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. On February 29, 2000, the veteran filed claims of entitlement to service connection for a right shoulder disability and a right Achilles tendon disability. Those claims were denied in a RO rating decision dated December 21, 2000. The veteran filed a NOD, and on December 23, 2002, the RO mailed a statement of the case (SOC) to the veteran 2. The veteran's January 2, 2003 letter cannot be read as a substantive appeal. 3. A substantive appeal was hand-delivered by the veteran's representative to the RO on February 25, 2003, over one year after the rating decision being appealed and over 60 days after the issuance of the SOC on December 23, 2003. CONCLUSIONS OF LAW 1. The veteran failed to submit a timely appeal as to his claims of entitlement to service connection for disabilities of the right shoulder and of the right Achilles tendon. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. § 20.302 (2006). 2. Because the veteran failed to file a timely substantive appeal, the Board has no jurisdiction over the issues, and the appeal as to these issues must be dismissed. 38 U.S.C.A. § 7104 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is ultimately seeking entitlement to service connection of conditions of the right shoulder and the right Achilles tendon. As has been described in the Introduction, however, the issue now before the Board involves the timeliness of his filing of an appeal as to those underlying issues. In the interest of clarity, the Board will initially review various laws generally pertaining to the issue on appeal. The Board will then move on to an analysis of the issue. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, the VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. However, for reasons expressed immediately below, the Board finds that resolution of the issues on appeal is based on the operation of law and that the VCAA is not applicable. See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The facts in this case are not in dispute. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the issue here on appeal. All evidence which pertains to this claim resides in the claims folder, and has for a number of years. No amount of additional development could change the evidentiary posture of this case. Application of pertinent provisions of the law and regulations will determine the outcome. Thus, no VCAA notice need be provided to the veteran. The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2006). The record shows that appeal of the timeliness issue was fully developed for appellate review after the veteran's filing of a timely notice of disagreement in response to the February 2004 adverse determination on the timeliness of appeal issues. He was furnished with a statement of the case addressing the timeliness issue in August 2004. See 38 C.F.R. § 19.34 (2006) [the matter of the timeliness of filing of a substantive appeal is itself an appealable issue, and if a claimant or representative protests an adverse determination by the agency of original jurisdiction, the claimant should be furnished with a SOC]; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has been fully informed of the reasons for the RO's decision. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. His accredited representative submitted an informal hearing presentation in August 2007. The veteran specifically declined a hearing in his September 2004 VA Form 9. Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Timeliness of appeal/consequences Appellate review of an RO decision is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2006). By regulation the substantive appeal must consist of either "a properly completed VA Form 1-9. . . or correspondence containing the necessary information." See Cuevas v. Principi, 3 Vet. App. 542, 546 (1992); see also 38 C.F.R. § 20.202 (2006). Perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a notice of disagreement and a formal appeal. The formal appeal permits the appellant to consider the reasons for an adverse RO decision, as explained in the statement of the case, and to formulate and present specific arguments relating to errors of fact or law made by the RO. See 38 U.S.C.A. § 7105; see also Roy v. Brown, 5 Vet. App. 554 (1993). After the statement of the case is provided to the claimant, a formal appeal must be filed either by the claimant personally or his or her authorized representative within 60 days from the date the statement of the case is mailed, or within the remainder of the one-year period from the date the notification of the RO decision was mailed, whichever period ends later. See 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. §§ 20.301(a), 20.302(b) (2006); see also Rowell v. Principi, 4 Vet. App. 9, 17 (1993) [where a claimant did not perfect an appeal by timely filing a substantive appeal, the RO rating decision became final]. If there is a failure to comply with the above-cited law and regulations governing the filing of appeals, it is incumbent on the Board to reject the application for review on appeal. See 38 U.S.C.A. §§ 7105(d)(5), 7108 (West 2002); see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction]. As noted by the United States Court of Appeals for the Federal Circuit, "it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted). Computation of time periods When the 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 the VA, excluding Saturdays, Sundays, and legal holidays. See 38 C.F.R. §§ 20.305 (a), 20.306 (2006). In computing the time limit for filing a document, the first day of the specified period will be excluded and the last day included and where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. See 38 C.F.R. § 20.305(b) (2006). Extensions Upon request, the time period for filing a substantive appeal may be extended for good cause shown. 38 C.F.R. § 3.109(b) (2006); but see Corry v. Derwinski, 3 Vet. App. 231 (1992) [there is no legal entitlement to an extension of time, rather, section 3.109(b) commits the decision to the sole discretion of the Secretary]. A request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303 (2005). Analysis The veteran was notified of the December 21, 2000 rating decision and given his appellate rights at that time. The SOC was mailed to the veteran on December 23, 2002. As will be discussed in greater detail below, under the law and VA regulations, the veteran had until February 21, 2003 to file a substantive appeal. See 38 U.S.C.A. § 7015 (West 2002); 38 C.F.R. § 20.302 (2006). As was alluded to above, a date stamp indicates that the veteran's substantive appeal was received at the RO on February 25, 2003, over 60 days after the SOC was issued on December 23, 2002 and over one year after the initial denial of his claim in December 2000. As should be clear in the Board's discussion of timeliness of appeals and of the consequences of untimely filing, the filing of the veteran's substantive appeal was not timely, and the case must be dismissed. The veteran and his representative have argued that the veteran's correspondence dated January 2, 2003, constitutes a substantive appeal. In the alternative, the veteran contends that VA constructively received the appeal at the time it was delivered at the Montgomery County (Ohio) Veteran's Service Office on February 20, 2003 [within the 60 day period after the SOC] and/or that the "mailbox rule" in 38 C.F.R. § 20.305(a) applies because the form was then mailed to the American Legion office located at the RO, again within the sixty day period. See April 2004 statement of the veteran. The Board will address these contentions in turn. The veteran's representative has argued that the veteran's January 2, 2003 letter to VA constitutes a substantive appeal as to these issues. Clearly, if the January 2, 2003 letter is a substantive appeal as to the issues of entitlement to service connection of conditions of the right shoulder and right Achilles tendon, the appeal would be timely. Although cognizant of the fact that it must liberally construe statements from claimants, see EF v. Derwinski, 1 Vet. App. 324, 326 (1991), the Board finds that the veteran's January 2003 letter was properly interpreted by the RO as not including a substantive appeal as to the right shoulder and Achilles tendon issues. Specifically, although the veteran's letter refers to the December 2000 rating decision and the December 2002 SOC, its clear intent was to ask the RO to consider another issue, entitlement to an increased rating for a service-connected left hand disability. The two service connection issues were not mentioned anywhere within the letter. That statement was therefore not a substantive appeal with respect to the December 2002 SOC, since the veteran did not identify any issues being appealed.. See 38 C.F.R. § 20.202; see also Brannon v. West, 12 Vet. App. 32 (1998) [although the Board must interpret an appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant]. Having determined that the January 2003 communication from the veteran cannot be deemed to be a substantive appeal, the Board now turns to the second contention advanced on behalf of the veteran, that the February 2002 VA Form 9 [which unquestionably was a substantive appeal as to these two issues] was timely filed. The date stamp reflects that the VA Form 9, which was dated February 19, 2003, was received at the RO on February 25, 2003. Initially, the Board must determine when the 60-day period after December 23, 2002 for filing a timely substantive appeal expired. Applying the operative VA regulations, 38 C.F.R. §§ 20.305(b) and 20.306, the sixtieth day was February 21, 2003. The date of mailing of the SOC, December 23, 2002, is excluded from the computation; see 38 C.F.R. § 20.305(b) (2006). December 24, 2002 was the first day of the 60-day period. As there are thirty-one days in December and January, the sixtieth day was February 21, 2003 [8 days in December, 31 in January and 21 in February for a total of 60]. February 21, 2003 was a Friday and was not a federal holiday. Therefore, the Board finds that the 60-day period expired as of that day. This was also the finding of the RO. The Board observes that the VA Form 9 in question was date- stamped as being received at the RO on February 25, 2003. The cover sheet indicates that it was hand delivered from the American Legion on that date. Accordingly, the postmark rule in 38 C.F.R. § 20.305(a) (which provides for a prior 5-day presumption of mailing) does not apply in this case, since the veteran's VA Form 9 was hand delivered and not mailed to the RO. The veteran has argued that he initially hand delivered his appeal to the local office of his representative in Montgomery County, Ohio and that his representative there mailed his appeal to its offices, which were located at the Cleveland RO. He therefore seeks to assert use of the mailbox rule by virtue of the mailing of the document between the Montgomery County and Cleveland offices of his representative. The evidence of record does not include records from the American Legion confirming its receipt of the veteran's appeal at its Montgomery County office on February 20, 2003 (a Thursday), and further does not reflect the mailing of the document by the American Legion from Montgomery County to its Cleveland Office. The Board has no reason, however, to doubt that this was what transpired. However, even if the Board accepts this description of events as true, the appeal is still not timely filed. The veteran's representative is not an agent of VA. Therefore, receipt by the representative of the Form 9 (at the RO, or at a remote location as is alleged here) does not constitute its receipt by VA. Moreover, mailing of the document between the representative's offices is not mailing to VA as contemplated by 38 C.F.R. § 20.503(a). In other words, the fact that the VA Form 9 was in the possession of the representative in its Montgomery County office on February 20, 2003, within the 60-day period, is not relevant to the crucial matter of the timeliness of its filing with VA. It is unfortunate that the representative did not submit the VA Form 9 to VA prior to the expiration of the statutory period for doing so, but this does not change the outcome of this appeal. This case boils down to the question of whether the VA Form 9 was filed in the RO within the period prescribed by law. For reasons stated above, the answer is no. The Board additionally observes that the veteran did not request an extension of time for filing his appeal in writing prior to the expiration of the time limit for filing the substantive appeal. See 38 C.F.R. §§ 3.109, 20.303 (2006). In short, for reasons and bases discussed above, the Board finds that timely substantive appeals were not received as to the issues of the veteran's entitlement to service connection for disabilities of the right shoulder and the right Achilles tendon. The filing period expired on February 21, 2003 and the substantive appeal was not filed until February 25, 2003. If there is a failure to comply with the law or regulations, it is incumbent upon the Board to reject the application for review on appeal. 38 U.S.C.A. §§ 7105, 7108; See Roy, supra; see also Rowell v. Principi, 4 Vet. App. 9 (1993). Because the veteran did not timely file substantive appeals regarding the December 2000 rating decision as to entitlement to service connection of conditions of the right shoulder and the right Achilles tendon, the Board lacks jurisdiction to adjudicate the issues 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 (2006). The Board finally observes that this outcome may seem harsh. However, the old chestnut "close enough for government work" manifestly does not apply to filing appeals. The Board is obligated to follow the law. See 38 U.S.C.A. §§ 7104(c), 7108 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) [discussing the necessity to filing a substantive appeal which comports with governing regulations]. ORDER The appeal of the December 2000 rating decision as to the denials of service connection for a right shoulder condition and an Achilles tendon condition is dismissed. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Important Notice: Attached to this decision is a VA Form that provides information concerning your rights to appeal our decision. Due to recent changes in the law, some of the information contained in the attached notice of appellate rights form is no longer accurate concerning the ability to pay attorneys and agents to represent you. Some additional information follows that summarizes the current law. To the extent that the information contained in the attached VA Form conflicts with the summary below, please disregard the information on the VA Form and instead rely upon the following information: Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006). If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. VA is in the process of amending its regulations governing representation of claimants for veterans' benefits in order to implement the provisions of the new law. More information concerning the regulation changes and related matters can be obtained at http://www1.va.gov/OGC (click on "Accreditation and Recognition of Service Organizations"). Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the Chief Counsel for Policy (01C3) Board of Veterans' Appeals 810 Vermont Avenue, NW, Washington, DC 20420 Facsimile: (202) 565-5643 (When final regulations are published to implement the requirements of the new law, fee agreements must be filed with the VA Office of the General Counsel and not the Board.) Department of Veterans Affairs