Citation Nr: 1318086 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-16 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether a substantive appeal was timely received as to an April 2009 rating decision which denied a claim to reopen a claim for service connection for a left eye pterygium. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision issued in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran was scheduled for a hearing in March 2013 before a Veterans Law Judge of the Board via video-conference. The Veteran failed to report for the scheduled hearing. No communication has been received from the Veteran alleging good cause for his failure to report for the scheduled hearing. As such, his request for a hearing is hereby deemed to have been withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A substantive appeal was not received within one year of the April 16, 2009 VA notice of the April 2009 rating decision, nor within 60 days of issuance of the March 9, 2010 statement of the case (SOC) made in response to the Veteran's April 2009 notice of disagreement. CONCLUSION OF LAW A timely substantive appeal was not filed in connection with the April 2009 rating decision which denied a claim to reopen a claim for service connection for a left eye pterygium. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302-305 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, where a claimant has failed to timely perfect the appeal, the Board must conclude that there is no reasonable possibility that providing additional assistance would aid in substantiating the underlying claim. Thus, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 5103(a). 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 upon statutory interpretation, rather than consideration of factual evidence. DelaCruz v. Principi, 15 Vet. App. 143 (2001). Appellate review of a decision of the AOJ is initiated by a notice of disagreement and completed by a substantive appeal after an SOC is furnished to the appellant. The notice of disagreement must be filed within one year from the date of mailing of notice of the result of initial review or determination. The SOC is then issued to the appellant, who is afforded the remainder of the one-year appeal period, or a period of 60 days from the date the SOC is mailed, to file the substantive appeal. This may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200-204; 20.300-306 (2012). Except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed. 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. In the instant case, notice of the April 2009 rating decision which denied the Veteran's claim to reopen a claim for service connection for a left eye pterygium was issued on April 16, 2009. The Veteran was fully notified of his appellate rights at that time. A notice of disagreement with that decision was received on April 28, 2009. Thereafter, an SOC was issued on March 9, 2010. The SOC was accompanied by a letter advising the Veteran of the purpose of the SOC, the need to file a formal appeal, and of the applicable time limits for filing his substantive appeal. On May 28, 2010, the AOJ was contacted by a Congressional liaison for a status update on the Veteran's appeal. The AOJ advised that no VA Form 9 had been received, and the appeal had been closed. On June 10, 2010, the Veteran submitted, apparently through the Liaison, a letter explaining that he had been hospitalized for two months beginning in February 2010 for a hip replacement and had been unable to respond to the SOC in a timely manner as a result. In connection with this argument, he provided copies of his February 9, 2010 operation reports, discharge summary for his 4-day hospitalization from February 9 - 13th, 2010, and a final orthopedic outpatient treatment report dated May 14, 2010, associated with his hip surgery. Considering that the Veteran's hospitalization may constitute good cause for not timely perfecting his appeal, the AOJ sent him a VCAA letter in April 2012 requesting that he complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the private hospital and nursing care records, so that VA could better assess the nature and extent of his inpatient care. In June 2012, uncompleted VA Forms 21-4142, signed by the Veteran, were provided to VA through a Congressional liaison. The duty to assist is not a one-way street. If an appellant wishes help, he/she cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The VA has not received any evidence to support the Veteran's assertion that he was medically incapable of timely filing a substantive appeal. While the Veteran may be deemed competent to make such an assertion, he has not been shown to be credible in this regard. The Board finds that his assertion that he required in-patient therapy for two months relative to his hip surgery in February 2010 is expressly contradicted by a hospitalization summary which reflects only four days of hospitalization following his hip surgery, and a May 2010 report of outpatient orthopedic treatment. The Veteran failed to fully complete the necessary disclosure authorization forms to obtain clinical evidence which may help substantiate his assertion. The Veteran has also argued that when he returned home from rehabilitation, he found no SOC or VA Form 9 in his mail. However, there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992) (with respect to procedures at the Board); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption to procedures at the RO). The Veteran's assertions alone that he did not receive the SOC are not sufficient to rebut the presumption. A review of the record shows that the SOC was mailed to the Veteran's current address and it was not returned to VA as undeliverable. In light of these facts, the Board finds that the Veteran has not demonstrated good cause for not filing his substantive appeal within the time limit for doing so under VA regulations. Thus, the Board finds that the Veteran did not file a timely substantive appeal, and his appeal as to this issue must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER A timely substantive appeal not having been received in connection with the appeal of the April 2009 rating decision, the appeal on this issue is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs