Citation Nr: 1306345	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-05 445	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether the Veteran's substantive appeal was filed timely.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel

INTRODUCTION

The Veteran served on active duty from September 1975 to September 1995.

This matter comes before the Board of Veterans' Appeals from a September 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In November 2010, the Veteran testified before the undersigned at a Board hearing at the RO.  A copy of the transcript is of record.


FINDINGS OF FACT

1.  Notice of the Statement of the Case was dated May 19, 2008; a substantive appeal had to be filed by July 18, 2008 to be considered timely.

2.  The Veteran's substantive appeal (via a Form 9, Appeal to the Board of Veterans' Appeals) was received by VA on July 23, 2008.

3.  The postmark date for the Veteran's substantive appeal is presumed to be 
July 16, 2008.

4.  The Veteran's substantive appeal was timely filed.


CONCLUSION OF LAW

The criteria for a timely filed substantive appeal have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.305 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA does not apply to the instant claim.  In the present case, the issue is the timeliness of the Veteran's substantive appeal.  The facts as to the date of receipt of the Substantive Appeal are not in dispute and the issue in this appeal will be determined by applying the relevant laws and regulations to the facts.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (noting that where "the law as mandated by statute, and not the evidence, is dispositive of [the] claim, the VCAA is not applicable").  Nonetheless, the Board is fully allowing the claim currently before it so no prejudice follows to the Veteran.

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).  Appellate review is initiated by the timely filing of a Notice of Disagreement, and is completed by the timely filing of a substantive appeal after a Statement of the Case has been furnished.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012).  A decision as to the timeliness and adequacy of a substantive appeal will be made by the Board.  38 U.S.C.A. § 7108 (West 2002); 38 C.F.R. § 20.101(c), (d) (2012). 

The substantive appeal must be filed within 60 days from the date that the RO mails the Statement of the Case to the claimant, 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.  38 C.F.R. § 20.302(b) (2012); see also 38 C.F.R. § 20.300 (2012) (noting, in pertinent part, that the Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed).  The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case for purposes of determining whether an appeal has been timely filed.  38 C.F.R. 
§ 20.302(b).  In computing the time limit, the first day of the specified period will be excluded and the last day included.  Id. § 20.305(b).  Where the time limit expires on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.  Id. 

Any submission postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed.  Id. § 20.305(a) (2012).  In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA.  Id.  In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded.  Id. 

Here, on June 15, 2007, the RO sent the claimant notice of his Rating Decision for his claims for service connection.  The claimant timely filed a Notice of Disagreement in August 2007.  A Statement of the Case was issued on 
May 19, 2008.  VA received the claimant's substantive appeal (via a Form 9, Appeal to the Board of Veterans' Appeals) on July 23, 2008, appealing issues of increased initial ratings for degenerative disc disease and bilateral ingrown great toenails, as well as issues of entitlement to service connection for sleep apnea, residuals of burned hands and fingers, hypertension, cardiac abnormality, and bilateral hearing loss.  There is no postmark of record for this submission.  In September 2009, the RO notified the claimant that his substantive appeal was untimely.  The claimant perfected an appeal of that determination. 

The Veteran makes various allegations, including that he sent the substantive appeal to his representative within the period for a timely appeal, and that placed the substantive appeal into the "system," and that he only waited to file his substantive appeal because his physician was providing a statement.  The Board will not address these arguments, however, because under the regulatory postmark rule, the Veteran's substantive appeal was timely filed. 

Because the Statement of the Case was issued or mailed on May 19, 2008, the Veteran's substantive appeal should have been received by July 18, 2008, which is 60 days after the mailing of the Statement of the Case.  See 38 C.F.R. § 20.302(b).  

But where, as here, the postmark on a document is not of record, the postmark date is presumed five days prior to receipt by VA.  38 C.F.R. § 20.305(a).  The Veteran's substantive appeal was received by VA on Wednesday, July 23, 2008.  Calculating the postmark date, the first day, July 23rd, is excluded; likewise, July 19th and 20th are excluded from the five-day period because those dates fall on a Saturday and Sunday.  See 38 C.F.R. § 20.305(a).  Accordingly, counting five days back from Tuesday, July 22, 2008, and excluding the weekend dates, the date of postmark is July 16, 2008.  Thus, the postmark date for the Veteran's substantive appeal is presumed to be July 16, 2008, which is considered to be timely for filing purposes. 

Accordingly, the Veteran's appeal was timely, and his appeal is perfected.  The appeal is granted to this extent only. 


ORDER

The Veteran perfected a timely appeal of the issues of increased initial ratings for degenerative disc disease and bilateral ingrown great toenails, as well as issues of entitlement to service connection for sleep apnea, residuals of burned hands and fingers, hypertension, cardiac abnormality, and bilateral hearing loss; the appeal is granted to this extent only.



____________________________________________
P. SORISIO
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs