Citation Nr: 0811226 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-05 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a timely appeal was submitted with respect to a decision of August 2003 which denied multiple claims. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from August 1961 to February 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision letter of August 2005 by the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In the decision letter, the RO notified the veteran that VA Form 9 received on August 18, 2005 was not timely because his right to appeal had expired. FINDINGS OF FACT 1. A decision of August 2003 denied the veteran's claims for service connection for diabetes mellitus, hearing loss, and dementia. The decision also advised the veteran that Merchant Marine service after August 15, 1945 was not considered to be active service for VA compensation benefits purposes. A notification letter dated August 11, 2003, explained the decision, and an enclosure sent with that letter advised him of his appellate rights. 2. The veteran expressed disagreement with the determination in a document received on August 13, 2004. 3. On June 7, 2005, the RO issued a statement of the case which addressed the claims. 5. The veteran submitted a substantive appeal statement which was received more than 60 days later on August 18, 2005. CONCLUSION OF LAW The veteran did not submit a timely appeal of the decision of August 11, 2003 which denied multiple claims. 38 C.F.R. §§ 20.202, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The formality of 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 (NOD) and a formal appeal. See Roy v. Brown, 5 Vet. App. 554 (1993). Appellate review of an RO decision is initiated by an NOD and completed by a substantive appeal after a statement of the case (SOC) is furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. After an appellant receives the SOC, he or she must file a formal appeal within sixty days from the date the SOC 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. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b); see Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992) (where claimant did not perfect appeal by timely filing substantive appeal, RO rating decision became final). By regulation, this formal appeal must consist of either a VA Form 9, or correspondence containing the necessary information. 38 C.F.R. § 20.202. The formal appeal permits the appellant to present specific arguments relating to errors of fact or law made by the RO. 38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 555 (1993). Upon request, the time period for filing a substantive appeal may be extended for a reasonable period for good cause shown. 38 U.S.C.A. § 7105(d)(3). 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. Here, an August 2003 decision denied the veteran's claims for service connection for diabetes mellitus, hearing loss, and dementia. The decision also noted that Merchant Marine service after August 15, 1945 was not considered active service for VA benefits purposes. A letter dated in August 2003 notified the veteran of the decision, and an enclosure sent with that letter advised him of his appellate rights. The veteran expressed disagreement with that determination in a document received on August 13, 2004. He also submitted additional evidence at that time. A decision of December 13, 2004 confirmed the denial of the claims. The RO issued a statement of the case which addressed the claims on June 7, 2005. The veteran did not submit a VA Form 1-9 (Appeal to the Board of Veterans' Appeals) within 60 days from the issuance of the June 2005 statement of the case. He also did not request an extension of time for filing that document. The veteran submitted a substantive appeal statement which was received on August 18, 2005; however, that was beyond the expiration of the applicable 60 day time limit. The Board notes that the submission of additional evidence by the veteran in August 2004, and the subsequent readjudication in December 2004 do not have the effect of extending the time limit beyond 60 days after the issuance of the statement of the case on June 7, 2005. Submission of additional evidence only results in an extension under specific circumstances set forth in 38 C.F.R. § 20.302 and § 20.304. Those regulations indicate that submission of additional evidence generally does not extend the time limit for filing an appeal, and that the date is extended only where the submission of additional evidence requires issuance of a supplemental statement of the case. In the present case, however, no supplemental statement of the case was required, as the statement of the case covered all evidence which had been presented. Thus, the issuance of the statement of the case in June 7, 2005 marked the beginning of the 60 day period in which the veteran was required to submit his substantive appeal. The veteran contends that the RO made a mistake by concluding that his substantive appeal was not submitted in a timely manner. First, he notes that the appeal was received less than 30 days late. Secondly, he asserts that he was sick, both mentally and physically, and was unable to submit the appeal any earlier than he did. Initially, the Board notes that the argument that the appeal statement was submitted less than 30 days late is legally irrelevant. There is no 30 day grace period following the expiration of the time limit for filing an appeal. With respect to the argument that the veteran was prevented from filing the appeal earlier due to physical and mental illness, the Board finds that this contention is not substantiated by the veteran's medical treatment records. The Board has noted that the veteran has multiple disabilities, including a major depressive disorder, hepatitis C, and melanoma of the skin. However, the treatment records dated within 60 days of the issuance of the statement of the case reflect that the disorders were not particularly disabling at during that time frame. In this regard, the Board notes that the veteran was able to physically report for several medical appointments during that time frame. A July 13, 2005, mental health clinic note reflects that the veteran's symptoms were unchanged and that was no not then taking any psychiatric medication. Mental status examination showed that he was appropriately dressed, and neatly groomed. He was alert and oriented times five. His speech was clear with normal volume. He was verbose and his mood was mildly dysphoric, but his thought content was relevant. In addition, his thought process was linear and goal directed. His memory and concentration were unimpaired for the purposes of the visit. His insight and judgment were intact for the purposes of informed consent. He did not appear to be acutely psychotic, suicidal, or severely depressed. Based on the foregoing findings, the Board is of the opinion that there is no basis to conclude that the veteran's psychiatric status prevented him from filing a substantive appeal statement within the time limit. Similarly, the Board finds that there was no physical impairment due to illness which prevented the veteran from complying with the time limit. As noted, he was physically able to appear for several medical appointments at the VA medical center. This alone strongly indicates that his degree of physical disability was not of such severity to prevent him from filing a substantive appeal. An August 2005 treatment record reflects that the veteran denied having chest pain or exertional dyspnea. He was advised to exercise. The Board further notes that the filing of a substantive appeal form is not a physically challenging task, and would not be physically taxing. For these reasons, the Board finds that the veteran was not prevented from filing his substantive appeal within the time limit by either mental of physical disability. Good cause for failing to meet the time limit has not been shown. See 38 C.F.R. §§ 3.109, 20.303. Accordingly, the Board finds that the veteran did not submit a timely appeal of the decision of August 2003, which denied multiple issues. ORDER The veteran did not submit a timely appeal of the decision of which denied reimbursement of medical expenses. The appeal is dismissed. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs