Citation Nr: 1302671	
Decision Date: 01/24/13    Archive Date: 01/31/13

DOCKET NO.  11-07 897	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Whether the Veteran's substantive appeal (VA Form 9) was timely filed with regard to a May 2008 rating decision denying reopening of claims of entitlement to service connection for heat intolerance and a back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March to December 1980.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction over the case was subsequently transferred to the RO in Cleveland, Ohio.

By way of background, a hearing was held before a Decision Review Officer at the RO in San Diego for the underlying service-connection claims in July 2009.  In February 2012, the Veteran testified at a hearing before the Board at the RO in Cleveland.  Transcripts of both proceedings are of record.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein.


FINDINGS OF FACT

1.  A May 2008 rating decision denied reopening of claims of entitlement to service connection for heat intolerance and a back disorder; the Veteran was notified of this determination by letter dated May 6, 2008.

2.  The RO received the Veteran's timely notice of disagreement (NOD) as to the above-stated issues on February 20, 2009, and a related statement of the case (SOC) was issued and sent to the Veteran on September 1, 2009.

3.  The RO received a substantive appeal (VA Form 9) from the Veteran on January 12, 2010; this is the first VA Form 9 of record following issuance of the SOC in September 2009.
4.  A request for an extension of the time limit for filing the substantive appeal, timely or otherwise, is not of record.


CONCLUSION OF LAW

The Veteran did not submit a timely substantive appeal with regard to the May 2008 rating decision, nor did he submit 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, 20.200, 20.202, 20.302, 20.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided prior to an initial unfavorable RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In the decision below, the Board finds the Veteran did not submit a timely substantive appeal of the underlying rating decision.  As such, the Board is declining jurisdiction to consider the merits of the issues.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.101.  Thus, with regard to the issue on appeal, VA is not required to take any further action to assist the claimant.  38 U.S.C.A. § 5103A(a); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution is based on statutory interpretation, rather than consideration of factual evidence).

In this case, the Veteran was properly notified of the jurisdictional problem, and he was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness.  In this regard, the Veteran was afforded an opportunity to present testimony at a hearing before the Board.  During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained and identified an evidentiary deficit in the Veteran's claim, and suggested the submission of additional evidence to support the claim.  The VLJ also left the record open for a 30-day period following the hearing to allow for the submission of such additional evidence.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing, to the extent such duties existed in regard to this appeal.

Legal Criteria

The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2012).  The decision as to the timeliness and adequacy of a substantive appeal will be made by the Board.  38 U.S.C.A. § 7108; 38 C.F.R. § 20.101(c), (d).

Under VA regulations, an appeal consists of a timely filed written NOD and, after an SOC has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  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 an appellant needs to take to perfect an appeal.  38 C.F.R. § 20.202.

The substantive appeal must be filed within 60 days from the date that the RO 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 original determination being appealed, whichever period ends 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; 38 C.F.R. § 20.302(b).  An extension of the 60-day deadline to file the substantive appeal may be granted for good cause shown.  A request for such an extension must be made in writing prior to the expiration of the time limit for filing the substantive appeal.  38 C.F.R. § 20.303.  The RO may close an appeal without notice to an appellant for failure to respond to an SOC within the period allowed.  38 C.F.R. § 19.32.

Analysis

In this case, the RO issued a rating decision in May 2008 denying reopening of claims of entitlement to service connection for heat intolerance and a back disorder; the Veteran was notified of this decision in a letter dated May 6, 2008.  A timely NOD was submitted in February 2009.  The RO issued an SOC and mailed a copy, along with a notification letter, to the Veteran on September 1, 2009.  The letter included notice that the VA Form 9, Appeal to the Board of Veterans' Appeals, must be filed with the RO 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 the Veteran of the May 2008 rating decision (this period had expired).  A blank VA Form 9 was noted as an enclosure to the letter.  The letter also stated that if the substantive appeal was not filed within the specified period, the Veteran's case would be closed, and any request for an extension of time to file should be made prior to the expiration of the 60-day time limit.

The Veteran signed and dated a substantive appeal (VA Form 9) January 1, 2010, which the RO received on January 12, 2010.  The due date for the substantive appeal, 60 days from the date of mailing of the SOC, was in November 2009, including computation for the time limit expiring on a weekend.  38 C.F.R. § 20.305(b).  The RO made a notation on the form, on January 14, 2010 that the filing appeared not timely.  A review of the record shows that between the date of the mailing of the SOC and this January 2010 filing, there are no submissions of record from the Veteran or his representative, regarding an appeal or otherwise.

Consequently, the RO notified the Veteran in a January 2010 letter that his substantive appeal was untimely.  The letter correctly indicated that the substantive appeal was not timely, and the Veteran was informed of his right to appeal the RO's timeliness determination, providing him with an appeal rights form (VA Form 4107).  In February 2010, the Veteran's representative filed a written submission from the Veteran expressing dissatisfaction with the RO's timeliness determination.  The RO determined that this filing constituted an NOD to the January 2010 determination.  38 C.F.R. § 20.201.

For purposes of clarity in this discussion, the Board notes that in February 2010, the Veteran reported a change of address from California to Ohio.  The Veteran's file was subsequently transferred to the RO in Cleveland, and there was no procedural effect on the Veteran's current appeal as a result of this transfer (e.g., subsequent letters from the RO were sent to the updated address; submissions from the Veteran were associated with the claims file).

A July 2010 report of contact form shows that the Veteran stated an intent to contact his Disabled American Veterans (DAV) representative in San Diego to follow-up on the evidence submitted to VA.  A written submission from the Veteran later that month indicates that the Veteran spoke to his representative, who he stated would be able to confirm that the VA "[was] using an incorrect hearing date to deny [his] appeal," without further explanation.

The RO subsequently issued an SOC as to the timeliness issue in February 2011, with an attached blank VA Form 9.  In March 2011, the Veteran submitted a completed VA Form 9 with request for a Board hearing.

During the February 2012 Board hearing, the Veteran testified that he met with his DAV representative in San Diego on or about September 6, 2009 to get an explanation of the materials he received from the RO.  The representative then assisted him with completion of a VA Form 9.  The Veteran further testified that his representative went "out to the VA building . . . . And he went up a flight of stairs and from all accounts turned [the VA Form 9] in because when he came back down . . . [the representative] had no paper with him."  The Veteran stated that, based on this series of events, he could "only assume" that the substantive appeal had been hand-delivered to the RO at that time.  He also stated that, when there appeared to be no record of these events, he completed another form in January, along with an unspecified explanation.  See Board Hearing Tr. at 2-3.

The Veteran's DAV representative at the hearing stated that there was no log entry in DAV's case management system corroborating the September 2009 filing.  The representative was unable to reach his colleague in the San Diego DAV office that day, but indicated that he would contact him after the hearing.  The VLJ stated that the record would be held open for 30 days to obtain additional evidence, such as a sworn statement attesting to the execution and delivery of the substantive appeal in September 2009.  See Board Hearing Tr. at 3-4, 7.

The United States Court of Appeals for Veterans Claims (Court) has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly.  Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  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.

In this case, however, unlike the claimant in Percy, the RO did not treat the Veteran's substantive appeal as if it were timely.  In fact, the VA Form 9 was reviewed and subsequently annotated as not timely filed.  The RO then notified the Veteran of this defect in the substantive appeal, listing the pertinent procedural dates of record and providing the appeal procedure.  As such, the Board finds that the RO did not waive the issue of timeliness of the substantive appeal at any time, either explicitly or implicitly.

In regard to whether an earlier VA Form 9 (specifically one filed in September 2009) or other correspondence containing the necessary information to constitute a substantive appeal was filed with the RO, the Board finds that the preponderance of the evidence is against such a conclusion.  The Board notes that there is no evidence of record of any kind, either related to the appeal issue or otherwise, that was received by the RO between September 2009 and the filing of the VA Form 9 in January 2010.  Neither the Veteran nor his representative has provided evidence showing an earlier completed VA Form 9 or a written submission that could be interpreted as a substantive appeal, a timely request for an extension of time to file a substantive appeal, or evidence showing that such a filing was created and submitted within the allowable time period.  At this juncture, the Board also notes that the considerations provided for in the mailbox rule do not apply, as the filing was presumed to be hand-delivered.  38 C.F.R. § 20.305(a).

The Board acknowledges the Veteran's assertion that he completed a VA Form 9 in September 2009 and presumed that his representative submitted the form to the RO the same day.  During the February 2012 Board hearing, he testified that when he submitted the VA Form 9 in January 2010, a supplemental explanation was provided; unfortunately, such an explanation is not of record.  The Board notes that, even affording the Veteran's statement regarding the September 2009 filing full competence and credibility, it is speculative in nature and is unsupported by the remainder of the record.  The current representative stated that there was no record in the DAV case management system that a substantive appeal had been filed.  The record was left open for 30 days for the submission of additional, supporting evidence in this regard; as previously discussed, a review of the record shows that no additional evidence was received.  Furthermore, his statements establish that a Form 9 was not mailed to VA or otherwise delivered by him to VA.  Here, there is no presumption of regularity in regard to the use of the mail system.

In addition, the record does not reflect, and the Veteran does not contend, that he filed a timely request for an extension of time to file a substantive appeal under 38 C.F.R. § 20.303.

In sum, the claims folder does not contain a timely filed substantive appeal or timely request for an extension of time in which to file a substantive appeal.  Moreover, the RO did not waive the issue of timeliness of the substantive appeal at any time.  Accordingly, in light of the entire record, the Board concludes that it does not have jurisdiction to consider the Veteran's underlying claims, and the appeal is dismissed.


ORDER

In the absence of the submission of a timely substantive appeal with regard to the May 2008 rating decision or a timely request for extension of the time limit for filing the substantive appeal, the appeal as to the May 2008 rating decision is dismissed for lack of jurisdiction.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs