Citation Nr: 1037372 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 08-131 56A ) 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 a March 20, 2007, rating decision, which granted service connection for posttraumatic stress disorder (PTSD), and assigned initial evaluations of 30 percent, effective April 13, 1990; 50 percent, effective April 17, 1997; and 100 percent, effective October 12, 2005; and granted basic eligibility to Dependants' Educational Assistance from October 12, 2005. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision prepared in February 2007 and mailed on March 20, 2007 (hereinafter, March 2007 rating decision), by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A notice of disagreement (NOD) was received on April 13, 2007. A statement of the case (SOC) was issued on January 24, 2008, with a copy being sent to the Veteran and to his attorney. On June 28, 2010, the Veteran and his attorney were sent a letter advising them that the Board was going to adjudicate the issue of whether a substantive appeal had been filed in this matter. The Board notes that the claim for an increased initial rating for PTSD was divided into two separate issues on the SOC, one for an earlier effective date for a 100 percent rating and one for an increased rating, but that these are essentially the same issue. FINDINGS OF FACT 1. If the Veteran wanted appellate review of the March 2007 rating decision and the January 2008 SOC, he was required to file a substantive appeal by March 29, 2008. 2. The regularity of the January 2008 SOC mailing, including the Veteran's and his attorney's receipt of it, is presumed, and that presumption has not been rebutted. 3. The Veteran's substantive appeal was received on May 19, 2008. 4. A request for an extension of time to file a substantive appeal was not received or submitted. 4. VA never waived objections to the timeliness of the substantive appeal. CONCLUSION OF LAW The Veteran did not submit a timely substantive appeal with respect to a March 20, 2007, rating decision, which granted service connection for PTSD, and assigned staged initial evaluations of 30 percent, effective April 13, 1990, 50 percent, effective April 17, 1997, and 100 percent, effective October 12, 2005, for that disability and granted basic eligibility to Dependants' Educational Assistance from October 12, 2005. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.302 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist the Veteran The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2009)) which define the obligations of VA to assist a claimant in the development of a claim. However, the Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that the law is dispositive in the instant case, and that the provisions of the VCAA do not apply. Timeliness of the Appeal Appellate review of a determination is initiated when a NOD is timely filed. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. The claimant or his representative has one year from the date the agency of original jurisdiction (AOJ), or RO, mails notice of the determination to file a NOD. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). Upon receipt of the NOD, the RO reviews its previous determination. 38 U.S.C.A. § 7105(d)(1). If the previous determination is continued, the RO must prepare a SOC. Id. The claimant or his representative has 60 days from the date the AOJ mails the SOC or the remainder of the one-year period from the date the AOJ mailed notice of the determination, whichever comes later, to file a substantive appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). The significance of the periods allowed for appellate review is that the Board has jurisdiction to review an appeal if a claimant submit a timely substantive appeal, but does not otherwise have jurisdiction to review an appeal, unless actions by VA waive the filing of a timely substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding that VA waived any objections to the timeliness of the Veteran's substantive appeal because the RO consistently treated the matter as timely appealed and certified the matter to the Board and because testimony regarding the matter was taken before a member of the Board); An extension of the 60-day period allowed for timely substantive appeal following issuance of an SOC may be granted on request for good cause. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.303. As noted above, VA may waive the timeliness of a substantive appeal filed after expiration of the 60 period. See Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that VA waived any objections to the timeliness of the Veteran's substantive appeal because the RO obliged the Veteran when he requested that he be allowed to go forward with his claim after expiration of the 60 day period). The Veteran filed a claim for service connection for PTSD in May 1990. In January 2007, a Board decision granted service connection. That decision was not appealed and is final. In accordance with the January 2007 Board decision, the March 2007 rating decision granted service connection for PTSD. The March 2007 rating decision assigned an effective date of April 13, 1990, for the grant of service connection for PTSD. The RO assigned an initial evaluation for the disability due to PTSD. In this case, the RO assigned staged ratings for PTSD, beginning with a 30 percent evaluation in 1990 and assigning higher ratings as the symptoms increased in severity. The RO assigned a 100 percent evaluation for PTSD, effective October 12, 2005. As this rendered the Veteran eligible for Chapter 35 benefits, those were granted with the October 12, 2005, effective date as well. After the RO assigned an initial rating and an effective date, it issued notice of the determinations to the Veteran and to the Veteran's attorney, and that notice was mailed on March 20, 2007. The Veteran's attorney filed a timely NOD on April 13, 2007. The attorney's response to the March 2007 notice establishes that he received the notice. The NOD submitted by the Veteran's attorney was received by the RO on April 13, 2007. The attorney advised the RO that the Veteran was requesting a supplemental statement of the case (SSOC). By letter dated April 20, 2007, and copied to both the Veteran and the Veteran's attorney, the RO acknowledged receipt of the NOD and advised the Veteran and his attorney that the Veteran could request review by a Decision Review Officer, or that the RO could proceed, in the traditional manner, and would issue an SOC. By letter dated in late April 2007, and copied to the Veteran, the attorney advised the RO that he wanted an SSOC, not an SOC. The attorney's communication in late April 2007 establishes that the attorney received the April 20, 2007 letter from the RO. By a letter issued on April 30, 2007, the RO advised the Veteran and his attorney that an SSOC for the continuation of the claim for service connection for PTSD was not warranted, as the claim for service connection was satisfied by the Board's grant of service connection. However, the letter advised that the April 2007 letter would be treated as a notice of disagreement (NOD) with the March 2007 rating decision. The Veteran's attorney continued to send the RO requests for an SSOC in June 2007 and November 2007. He reiterated that the Board had "Remanded" the TPSD claim. The record establishes that the Veteran's attorney received the April 30, 2007 communication from the RO because the attorney sent the Board a copy of the June 2007 in which he again requested that an SSOC be issued, and attached a copy of the April 30, 2007 communication from the RO to the letter to the Board. The Veteran's attorney reiterated that the Veteran was entitled to an SSOC, not an SOC, as the issues decided in the March 2007 rating decision were part of the original appeal stemming from the May 1990 claim. The Board agrees with the RO's determination, issued to the Veteran and his attorney in April 2007, that the proper procedure was to issue an SOC following the Veteran's disagreement with the initial evaluation and assigned effective date. An analogous issue was raised in Grantham v. Brown, 114 F.3d 1156 (Fed.Cir. Jun 11, 1997), in which the Court held that an NOD regarding the disability compensation level for an eye condition was separate from a prior NOD regarding whether the eye condition was service-connected. The Court stated that "[b]ecause the first appeal concerned the rejection of the logically up-stream element of service-connectedness, the appeal could not concern the logically down-stream element of compensation level. [T]herefore, . . . as a matter of logic, the second NOD is the first NOD that is actually able to initiate appellate review of the issue." Similarly, here, the timely substantive appeal regarding the denial of service connection for PTSD, which was filed in April 1991, cannot possibly be an appeal from the initial rating which was eventually assigned in a March 2007 rating decision. As such, a new period for submission of timely appellate review began following the March 2007 rating decision and the December 2008 SOC, and the Veteran was required to file a new substantive appeal within the time period allowed under the governing statute and regulations. On January 24, 2008, the Veteran and his attorney were both sent an SOC on the issues of the initial rating for PTSD and the effective date for basic eligibility to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. See 38 C.F.R. § 20.302(b) (the date of mailing of the SOC is presumed to be the same as the date of the SOC). The Veteran's attorney contends that he did not receive the January 2008 SOC. The Veteran's attorney contends that the presumption of regularity has been rebutted in this matter. A "presumption of regularity" exists under which it is presumed that government officials have discharged their official duties properly. INS v. Miranda, 459 U.S. 14 (1982); United States v. Chemical Foundation, 272 U.S. 1 (1926). This presumption has been applied "to all manner of VA processes and procedures." Woods v. Gober, 14 Vet. App. 214, 220 (2000). It attaches when VA mails notice of a determination to a Veteran at his last known address of record. Id.; see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). In this case, the RO mailed numerous communications to the Veteran, with a copy to the Veteran's attorney, in the year preceding the issuance of the January 2008 SOC. The responses from the attorney to those communications demonstrates that the attorney received those communications. The attorney's address remained unchanged. The cover letter for the SOC includes a notation that a copy of the Soc was sent to the Veteran's representative. The record demonstrates that the Veteran and his representative have acknowledged that the Veteran received his copy of the SOC. There is no indication in the record that the copy sent to the representative was returned. The Veteran and his attorney had until March 29, 2008, sixty days from the date of the January 2008 SOC, to file an appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). Following the January 2008 SOC, there is no correspondence in the claims file from the Veteran or his attorney until an April 29, 2008, report of contact. A VA employee called the Veteran, and then the Veteran's attorney, regarding an unrelated matter. The RO's report of contact reflects that the attorney inquired about the initial rating for PTSD claim and the Chapter 35 claim. He was advised that there was no timely substantive appeal or VA Form 9 and the appeal was closed. The report notes that a copy of the SOC was faxed to the attorney because he claimed he had not received it. The Veteran's attorney contends that the VA employee told him that the SOC was never mailed, but this argument is not supported by the SOC or the report of contact. The Veteran's attorney argues that his numerous requests for an SOC or SSOC between April 2007 and May 2008 should be taken as evidence that he did not receive the SOC until it was faxed on April 29, 2008. However, the Board notes that no communication requesting an SOC or SSOC was received after the SOC was mailed in January 2008 until after the April 2008 contact initiated by VA. As noted above, the Veteran and his attorney have not argued that the Veteran did not receive the SOC. The Veteran's attorney cites to Piane v. Brown, 5 Vet. App, 25, 27 (1993) to argue that the presumption of regularity operates in reverse when things appear to be irregular. However, the Board finds no evidence of irregularity on the part of VA. The attorney stated, in a May 2008 letter to the RO, that the VA employee he spoke to in April 2008 "confirmed that your office filed to mail a copy of this January 2008 SOC to my office." The Report of Contact specifically states that the attorney was informed that "an SOC was sent on 1/24/08 & no F9 was returned so the issue is closed in appeals." The report further notes that a copy of the January 2008 SOC was faxed to the attorney because the attorney stated it was not sent to him. The Board does not interpret this report as a confirmation that the SOC was not sent to the attorney. The attorney's May 2008 letter also states, "You will notice that a courtesy copy was not provided to my office." The attorney's statement is not correct. The second page of the cover letter to the January SOC letter includes a notation that a courtesy copy (cc) was sent to "AGENT OR PVT ATTNY." The same notation, that a courtesy copy was sent to "AGENT OR PVT ATTNY" appears on other correspondence to the Veteran and his attorney. There is no indication in the record that other courtesy copies with this notation were not received by the attorney or were returned to the RO. The Board concludes, as a matter of fact, that the attorney's statements that he was not sent and did not receive the January 2008 SOC are not consistent with the record and are simply not enough to rebut the presumption of regularity. The regularity of this mailing, including that copies were mailed to the Veteran and to his attorney, is therefore presumed. On May 19, 2008, VA received the Veteran's substantive appeal, VA Form 9. It was accompanied by a copy of the rating decision and the SOC. In May 2008, July 2008, and October 2008, the attorney continued to demand an SSOC and to argue that the SOC was legally insufficient as the disagreement with the assigned effective date and initial rating was a continuation of the service connection claim. The case was certified by the RO to the Board in August 2009, without issuing an SSOC. The Board has considered whether an extension for good cause was requested. There is no evidence in the claims file that the attorney requested an extension of time to file the appeal once he was advised that VA had not received a timely substantive appeal. In his August 2010 letter to the Board, the attorney argued, in essence, that the May 2008 letter to the RO should have been considered a request for extension of time to submit the substantive appeal. However, the Board finds that, if the attorney wished to argue, proximate to the notice to him that a substantive appeal had not been received, that there was good cause for his failure to file an appeal, the attorney should have made such request in terms the RO could understand. VA is not required to liberally interpret an attorney's statements. Since a specific request for an extension of time to file a substantive appeal was not received or submitted, the Veteran was not entitled to extension of time for perfecting an appeal for good cause. See 38 C.F.R. § 20.303; Roy v. Brown, 5 Vet. App. 554, 556-57 (1993). The Board has considered whether VA waived any objections to the timeliness of the substantive appeal. Although the appeal was certified to the Board in August 2009, prior to that time-in the April 2008 telephone conversation with a VA employee-the attorney was advised that the appeal was considered closed due to the failure to timely appeal. While the certification could be seen as a waiver, certification alone is not considered a waiver of any objections to the timeliness of a Veteran's substantive appeal. See Percy, supra. Contrary to the facts in Percy, in this case, the RO treated the matter as closed. The Veteran's attorney was advised that the case was closed. No SSOC was issued on the numerous statements provided by the Veteran's attorney, despite his requests for an SSOC. As such, the Board finds that VA never waived objections to the timeliness of the substantive appeal. The law is clear that a substantive appeal must be filed with the agency of original jurisdiction (RO) within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. See 38 U.S.C.A. § 7104 (West 2002). In this case, the Veteran's substantive appeal was not received until May 19, 2008. The only evidence that the attorney did not receive the SOC are his own statements. Some of the attorney's statements, such as the statement that the VA employee who contacted him in April 2008 stated that no SOC had been mailed to the attorney, appear inconsistent with the record. Other statements by the attorney seem to mischaracterize the record or the legal standard applicable. For example, the attorney states that "the VARO has not disputed that it failed to provide the January 2008 SOC to my office until April 29, 2008." While it is true that the VARO did not provide a specific written statement to the attorney directly disputing the attorney's statement that no copy of the January 2008 SOC was sent to him, the VARO did fax the attorney a copy of its letter, which includes the notation that a courtesy copy was sent to the Veteran's attorney. In this case, the Veteran bears the burden of rebutting the presumption of regularity. As the attorney should be aware, there is no requirement that the VARO dispute the attorney's statement that he did not receive the January 2008 SOC. Finally, the letters from the attorney to the RO following the April 2008 contact from the RO primarily discuss the attorney's contention that the RO should issue a SSOC. The attorney's May 2008 letter, which focuses on contention the RO's procedure was incorrect and that no response from the Veteran is required for continuation of appellate review, does not support the credibility of the attorney's current argument that he did not receive the January 2008 SOC or a belief that there was good cause to extend the time allowed for timely substantive appeal. The Board is not persuaded, as a matter of fact, that the presumption of regularity has been rebutted. For these reasons, the Board finds that the appellant did not file a timely substantive appeal as to the initial rating for PTSD and the effective date for basic eligibility to Dependants' Educational Assistance. Therefore, inasmuch as a timely substantive appeal was not received from the Veteran, the Board does not have jurisdiction to adjudicate the claims. The appeal must thus be dismissed. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 2002). ORDER As the Veteran did not submit a timely substantive appeal with respect to a March 20, 2007, rating decision, which granted service connection for PTSD, and assigned initial evaluations of 30 percent, effective April 13, 1990, 50 percent, effective April 17, 1997, and 100 percent, effective October 12, 2005, and granted basic eligibility to Dependants' Educational Assistance from October 12, 2005, the appeal is dismissed. ____________________________________________ Tresa M. Schlecht, Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs