Citation Nr: 1000490 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 08-16 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Whether a Substantive Appeal (VA Form 9) was timely filed. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to May 1988. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In June 2009, the Veteran testified in a central office hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. The Board also received additional evidence from the Veteran at the hearing consisting of correspondence written by the Veteran and copies of VA documents and treatise evidence. The evidence was accompanied by a waiver of the Veteran's right to initial consideration of the new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2009). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. FINDINGS OF FACT 1. The Veteran was notified of the rating decision on May 21, 2004. 2. The RO received the Notice of Disagreement on July 22, 2004 and a Statement of the Case was prepared on December 1, 2005. The Statement of the Case was sent to the Veteran on December 2, 2005. 3. The RO received a VA Form 9 from the Veteran on February 2, 2006. 4. A timely request for an extension of the time limit for filing a substantive appeal is not of record. CONCLUSION OF LAW The Veteran has not submitted a timely Substantive Appeal with regard to the May 2004 rating decision, nor has she submitted a timely request for extension of the time limit for filing the substantive appeal. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.109, 20.202, 20.302, 20.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural Background Initially, the Board notes that the Veteran has filed multiple claims for benefits. In an effort to clarify the complicated claims file, the Board will attempt to explain the procedural aspects of this case. In October 2003, the Veteran filed a claim for TDIU, which alleged numerous disabilities. Her claim included entitlement to increased evaluations for service connected PTSD and a left ankle disability; as well as service connection for depression and anxiety, obesity, a back disability, a bilateral knee disability, a left wrist disability, endometriosis, migraines, asthma, a heart murmur and a hernia. A rating decision in May 2004 addressed all of these issues, except for depression and anxiety and a back disability. The Veteran filed a Notice of Disagreement (NOD) in July 2004, which included all the claims, including the anxiety and back disabilities not addressed in the rating decision. The PTSD claim was addressed in an August 2004 decision, which granted a 100 percent rating for PTSD. In a December 2005 Statement of the Case (SOC), the RO addressed the increased evaluation for the left ankle disability and the service connection claims for a bilateral knee disability, a left wrist disability, endometriosis, obesity, migraines, asthma, a heart murmur and a hernia. The SOC did not address the back disability or depression and anxiety. A VA Form 9 was filed on February 2, 2006 which indicated a request for a hearing and that only certain issues were being appealed. These issues were evaluation for the left ankle disability and the service connection claims for a bilateral knee disability, a back disability, lupus, endometriosis, obesity, asthma, and hernia. Therefore, the VA Form 9 did not include the left wrist claim, the asthma claim or the heart murmur claim. The VA 9, however, included the claim for service connection for a back disability and a claim for lupus which were not addressed in the SOC. The RO found the February 2002 VA Form 9 as untimely and closed the Veteran's service connection claims. Additionally, the Board notes that the PTSD rating was reduced in February 2006 to 50 percent. Regarding the back and anxiety claims, a rating decision in April 2007 adjudicated these claims. They were also addressed in an April 2008 SOC. In an August 2008 rating decision, the RO adjudicated 14 claims, including the 8 service connection claims as claims to reopen, the lupus claim was addressed for the first time, and the TDIU and increased rating claims for PTSD and the left ankle were included in addition to a claim for special monthly compensation and several secondary claims addressed as a single issue. Therefore, the issue before the Board is whether the VA Form 9 filed in February 2006 was timely. The Board also notes that in the hearing the Veteran asserted that the spine and anxiety claims should be on appeal. These claims, however, were closed by the RO in June 2008 and will not be further addressed in this decision. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 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 the decision below, the Board has determined the appellant did not submit a timely substantive appeal with regard to the rating decision currently on appeal. As such, the Board is declining jurisdiction to consider the merits of the claim. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2009). Thus, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 5103A(a) (West 2002); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence). In this case, the Veteran was properly notified of the jurisdictional problem, and she was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. Law and Analysis Under VA regulations, an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2009). A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (2009). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the Veteran or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes 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 be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302(b)(1) (2009). This may be extended for a reasonable period on request for good cause shown. 38 C.F.R. § 20.303 (2009). An RO may close an appeal without notice to an appellant for failure to respond to an SOC within the period allowed. See 38 C.F.R. § 19.32 (2009). In this case, a May 2004 rating decision denied the Veteran's claims. A letter dated May 21, 2004 notified the Veteran of that decision. The Veteran filed a NOD on July 22, 2004 and the RO issued an SOC in December 2005. A notification letter was sent to the Veteran on December 2, 2005, along with a copy of the SOC. The letter included notice that the VA Form 9, Appeal to the Board of Veteran's Appeals, must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying you of the rating decision. The letter included the provision that if the substantive appeal was not filed within 60 days, the Veteran's case would be closed. The letter also included that a request for an extension should be made prior to the expiration if the time limit. The Veteran personally submitted a VA Form 9 on February 2, 2006. (It was not delivered by mail.) Unfortunately, this document was received by the RO on day 62, which is after the time limit for filing a substantive appeal, which in this case, was January 31, 2006, 60 days after the issuance of the SOC. As a result, the RO notified the Veteran in a July 2006 letter that her substantive appeal was untimely. The Board acknowledges that the dates contained in that letter were incorrect, however the substance of the letter was accurate, specifically, that the Substantive Appeal was not timely. The appellant was informed of her right to appeal the RO's decision regarding timeliness in a VA Form 4107. The Veteran responded by filing a letter disagreeing with the RO's decision to close her claim and another VA Form 9 on August 16, 2006. The RO subsequently issued a SOC in April 2008. The Board acknowledges the recent decision of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37 (2009) which held that the 60- day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. However, unlike the claimant in Percy, the RO did not treat the Veteran's claim as if it were timely. On the contrary, after reviewing the adequacy of the VA Form 9 and determining that it was not timely, the RO notified that Veteran of the defects in the substantive appeal and that consideration of this question could result in dismissal. In this case, the Veteran's VA Form 9 was filed outside the 60 day time limit and was not timely. Further, the RO did not treat the VA Form 9 as timely, as such, did not waive the right to close the Veteran's claim. Accordingly, the Board concludes that this case may be distinguished from Percy, and that dismissal of the claims by the RO was warranted. Additionally, the Board has considered whether the appellant filed a timely request for an extension of the time limit to file a substantive appeal. The Board also notes that VA regulations specifically state that a request for an extension of the 60-day period for filing a substantive appeal must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. After reviewing the claims file, however, the Board notes that prior to the expiration of the period for filing a timely substantive appeal, no document was filed by the appellant that can be construed as a timely request for such an extension. Therefore, the Board finds that the appellant did not submit a timely request for an extension of the time limit for filing a substantive appeal. The Board has reviewed the entire record, including the hearing transcripts before the Board and the RO. Although the Veteran filed multiple Substantive Appeals (VA Form 9), she did not file one within 60 days after the notice letter sent on December 2, 2005. As such, the Veteran's substantive appeal was not timely filed and the RO was within its discretion in closing the Veteran's claims. Furthermore, the record does not reflect that the appellant made a timely request for an extension of the time limit for filing her substantive appeal. See 38 C.F.R. § 20.303. Accordingly, as the RO did not proceed in error, the Board will not overturn the decision of the RO to dismiss the Veteran's claims. As such, the Board does not have jurisdiction to consider her claims, and the appeal is dismissed. ORDER The VA Form 9, filed on February 2, 2006, was not timely, and the appeal is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs