Citation Nr: 0812267 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-12 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether a timely substantive appeal was filed with respect to the July 2002 rating decision that denied entitlement to service connection for arthritis/joint pain, avascular necrosis of the right hip, heart problems, right hand problems, post-traumatic stress disorder (PTSD), and irritable bowel syndrome (IBS) with diarrhea. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The appellant had active service in the Alabama Army National Guard from November 1990 to August 1991, from October 2003 to May 2004, and from November 2004 to December 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2003 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The appellant requested a video-conference hearing in connection with the current claim. The hearing was scheduled and subsequently held in February 2008. The appellant testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. FINDINGS OF FACT 1. The RO mailed a statement of the case to the appellant at his address of record on June 13, 2003 that listed the following issues as on appeal: entitlement to service connection for arthritis/joint pain, post-traumatic stress disorder, avascular necrosis of the right hip, heart problems, right hand problems, and irritable bowel syndrome with diarrhea. 2. The appellant did not file a substantive appeal with respect to the issues identified above within one year from the day that the VA local office mailed the appellant notice of the decision on appeal (the notice was dated July 16, 2002) or within 60 days from the day that the local VA office mailed the SOC to the appellant. 3. In the absence of a timely filed substantive appeal, the Board does not have jurisdiction to consider the claims of entitlement to service connection for arthritis/joint pain, post-traumatic stress disorder, avascular necrosis of the right hip, heart problems, right hand problems, and irritable bowel syndrome with diarrhea on the merits. CONCLUSION OF LAW The criteria for a timely filed substantive appeal have not been met. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION At issue in this case is whether the appellant filed a timely substantive appeal with regard to the issues identified in a July 2002 rating decision and June 2003 statement of the case. The issues on appeal were listed as entitlement to service connection for arthritis/joint pain, entitlement to service connection for PTSD, entitlement to service connection for avascular necrosis of the right hip, entitlement to service connection for heart problems, entitlement to service connection for right hand problems, and entitlement to service connection for IBS with diarrhea. The Board has reviewed all of the evidence of record, and concludes that the appellant did not file a timely substantive appeal. Thus, the Board does not have jurisdiction over the issues identified on the July 2002 rating decision. Filing Timely Appeals The steps to be taken to perfect an appeal to the Board following an adverse determination by an agency of original jurisdiction are set out fully by statute and regulations. According to 38 C.F.R. § 20.200 (2007), 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. See also 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.201 (2007) (outlining requirements for filing notices of disagreements and appeals). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202 (2007). The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination(s) being appealed. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.202. To the extent feasible, the argument should be related to specific items in the statement of the case. Id. If the statement of the case addressed multiple issues, the appeal must either indicate that it is an appeal as to all issues, or it must specifically indicate which issues are being appealed. Id. The appellant must file the substantive appeal within 60 days from the date the statement of the case is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. § 20.302(b). The substantive appeal must be filed with the VA office from which the appellant received notice of the determination being appealed. See 38 C.F.R. § 20.300 (2007). The period for filing a substantive appeal may be extended for good cause. The request for such an extension must be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal or the response to the supplemental statement of the case. 38 C.F.R. § 20.303 (2007). Proper completion and filing of a substantive appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. If the appellant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he is statutorily barred from appealing the RO decision. 38 U.S.C.A. §§ 7105(a), (d)(3), 7108. Factual Background and Analysis The appellant filed a claim of entitlement to service connection in September 2000 for the following conditions: arthritis/joint pain, avascular necrosis of the right hip, heart problems, and a right hand disability. The appellant subsequently filed a claim of entitlement to service connection for post-traumatic stress disorder (PTSD) in October 2001 and a claim to reopen entitlement to service connection for irritable bowel syndrome (IBS) with diarrhea in March 2002. The RO issued a rating decision in July 2002 in which all of the claims identified above were denied. The RO provided notice to the appellant of this decision by way of a letter dated July 16, 2002. The appellant submitted a timely notice of disagreement (NOD) in December 2002, and the RO provided the appellant with a statement of the case (SOC) on June 13, 2003. The rights advisement letter sent with the SOC stated in pertinent part: If you decide to continue your appeal, you need to file a formal appeal. You can do that by completing and filing the enclosed VA Form 9, Appeal to the Board of Veterans' Appeals. Please read the instructions that come with the VA Form 9 very carefully. They tell you what you need to do, and how much time you have to do it, if you want to continue your appeal. They also tell you about how to get assistance, about your hearing rights, and about a number of other important things. (Emphasis in original). Instructional forms attached to the VA Form 9 indicated two ways in which to calculate how much time the appellant had to file a timely substantive appeal - (1) calculate one year from the day that the VA local office mailed the appellant notice of the decision currently on appeal, or (2) calculate 60 days from the day that the local VA office mailed the SOC to the appellant. The appellant was advised that the rule which gave him the most time applied in his case. Based on the applicable statute and regulations, the veteran had one year from the date of the July 16, 2002 rating decision or 60 days from the date of the June 13, 2003 statement of the case to file a substantive appeal. However, the Board notes that the RO did not receive the appellant's VA Form 9 until September 24, 2003, which is more than one year after July 16, 2002, and more than 60 days after June 13, 2003. Accordingly, the appellant's substantive appeal was not timely filed. Moreover, there is no evidence of record to show that the appellant requested an extension in writing in this case during the requisite time period. The appellant was then notified by way of an October 28, 2003 letter that he failed to timely file a substantive appeal to the July 2002 rating decision and June 2003 SOC. The RO stated that it would take no further action on the appellant's appeal because the VA Form 9 was not timely received. The appellant subsequently perfected this appeal. The appellant was also afforded a video-conference hearing in connection with the current claim in February 2008. The appellant testified before the undersigned VLJ that he "dropped" his claim due to "health problems and a job opportunity." In addition, the appellant testified that the instructions included on VA Form 9 were confusing, and that he misconstrued the instructions for filing a timely substantive appeal. The Board notes that the appellant testified about his educational qualifications and those of his sister, who purportedly helped him read the instructions for filing a timely substantive appeal. The appellant testified that he held a Masters Degree in Education and that his sister was an attorney. Absent any evidence of record indicating impairment in comprehension, the Board finds the appellant's statements concerning the "confusing" VA Form 9 instructions to be not credible in light of his educational background. See generally, Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (noting that a reasonable person could be expected to understand from the notice provided what was needed). Accordingly, the Board concludes that the appellant's substantive appeal was not timely filed and that the Board does not have jurisdiction of the claims of entitlement for service connection arthritis/joint pain, post-traumatic stress disorder, avascular necrosis of the right hip, heart problems, right hand problems, and irritable bowel syndrome with diarrhea. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the appellant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the appellant is expected to provide; and (4) must ask the appellant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (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). The facts of this case are not in dispute. The appellant acknowledged in testimony elicited at the February 2008 video-conference hearing that he "dropped" his claim as a result of health and employment issues and had to "reclaim it." The record shows that a timely appeal was not filed and there is no indication that the appellant requested an extension of time in which to file an appeal. As the appellant's substantive appeal was not timely filed, his claims of entitlement to service connection cannot be considered on the merits. Because the application of the law to the undisputed facts is dispositive of this appeal, the VCAA is not applicable in this instance. See Mason v. Principi, 16 Vet. App. 129 (2002). ORDER As a substantive appeal was not timely filed, the Board lacks jurisdiction to consider the claims entitlement to service connection for arthritis/joint pain, post-traumatic stress disorder, avascular necrosis of the right hip, heart problems, right hand problems, and irritable bowel syndrome with diarrhea; thus, the appeal is dismissed. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs