Citation Nr: 1307201 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-33 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the Veteran's substantive appeal (VA Form 9) was timely filed with regard to a September 2006 rating decision denying a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 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. The issue of the request to reopen a claim of entitlement to service connection for PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, in the January 2009 notification letter regarding the timeliness of the substantive appeal, the RO indicated that the Veteran's statement would be treated as a claim to reopen. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A September 2006 rating decision denied the claim of entitlement to service connection for PTSD; the Veteran was notified of this determination by letter dated September 18, 2006. 2. The RO received the Veteran's timely notice of disagreement (NOD) as to the above-stated issue on March 16, 2007, and a related statement of the case (SOC) was issued and sent to the Veteran on October 22, 2008. 3. The RO received a substantive appeal (VA Form 9) from the Veteran on December 30, 2008. 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 September 2006 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. The Board notes that the Veteran elected Decision Review Office (DRO) post-decision review in a June 2009 written submission, within the sixty day time period to do so. Although the case was subsequently reviewed under the traditional appeal process, as noted in the July 2009 SOC, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, there is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had the claim undergone DRO review on the issue of timeliness of the substantive appeal. Moreover, the originating agency did provide a post-decision review of the claim. Accordingly, the failure to specifically provide DRO review is no more than harmless error, and issuance of a final decision by the Board is not prejudicial to the Veteran. Legal Principles and Analysis 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. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b). A response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. 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. In calculating this five-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a). As applicable to this case, Christmas Day (December 25) is a legal holiday. 38 C.F.R. § 20.306. In this case, the RO issued a rating decision in September 2006 denying the claim of entitlement to service connection for PTSD; the Veteran was notified of this decision in a letter dated September 18, 2006. A timely NOD was submitted in March 2007. The RO issued an SOC and mailed a copy, along with a notification letter, to the Veteran on October 22, 2008. 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 September 2006 rating decision (this period had expired). A blank VA Form 9 was noted as an enclosure to the letter. The letter also indicated that the RO was available to explain the form if the Veteran had any questions. The SOC also included relevant regulations about the filing of a substantive appeal, including the provision that if the substantive appeal was not filed within the specified time period, the Veteran's case may be closed without notice to him. The Veteran signed and dated a substantive appeal (VA Form 9) December 28, 2008, which the RO received on December 30, 2008, based on the date stamp on the back of the document. The due date for the substantive appeal, 60 days from the date of mailing of the SOC, was December 22, 2008, including computation for the time limit expiring on a weekend. 38 C.F.R. § 20.305(b). The RO made a notation on December 31, 2008, attached to the form that the filing appeared not timely; a second notation was made to this effect on January 26, 2009. A review of the record shows that between the date of the mailing of the SOC and this December 2008 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 2009 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 March 2009, the Veteran filed a written submission expressing dissatisfaction with the RO's timeliness determination. The RO determined that this filing constituted an NOD to the January 2009 determination. 38 C.F.R. § 20.201. In this submission, the Veteran indicated that he misinterpreted the notification letter, believing that he had until December 31, 2008 to file his appeal. He further indicated that he was "only 6 days late mailing the appeal form . . . ." In his July 2009 substantive appeal to the issue of timeliness (VA Form 9), the Veteran indicated that "[d]ue to the circumstances . . . some type of grace period could be employed here," referring to his confusion regarding the actual deadline for filing, stating that he thought the deadline was December 31. 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. The Board has also considered the mailbox rule as applicable to this case. A review of the file indicates that the postmark for the mailing of the substantive appeal form is not of record; however, affording the Veteran all reasonable doubt, to include his assertion that he mailed the substantive appeal, the presumed postmark date (five days prior to the date of receipt of the document by VA) is December 24, 2008, based on the exclusion of Christmas Day as a legal holiday. Nonetheless, this date is still after the December 22, 2008 deadline, which also added an extra day to the original 60-day period, due to the end of this period expiring on a Sunday (December 21). The Board acknowledges the Veteran's assertion that he misinterpreted the information in the notification letter regarding the filing deadline of his substantive appeal. The Veteran acknowledged that he filed the substantive appeal six days late in his March 2009 NOD. The record is silent, however, as to any correspondence or other contact from the Veteran between the date of mailing of the SOC and the December 2008 filing of his substantive appeal indicating that he attempted to contact the RO to clarify the filing deadline; he appears to have assumed that the deadline was December 31, 2008 without further explanation, even though that is more than sixty days after the date of issuance of the SOC and notification letter. 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 or otherwise contacted the RO between the date of mailing of the SOC and the December 2008 filing of his substantive appeal. 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 claim, and the appeal is dismissed. ORDER In the absence of the submission of a timely substantive appeal with regard to the September 2006 rating decision or a timely request for extension of the time limit for filing the substantive appeal, the appeal as to the September 2006 rating decision is dismissed for lack of jurisdiction. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs