Citation Nr: 1320102 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-32 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether a substantive appeal was timely filed following a February 2, 2010 decision, which denied entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The appellant claims qualifying service for a one time payment from the Filipino Veterans Equity Compensation Fund. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 decision of the RO in Manila, the Republic of the Philippines. 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 addressing the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund was not filed within the one-year period from the date of mailing of the notification of the February 2010 decision being appealed or within 60 days from the date the June 2010 statement of the case was issued. CONCLUSION OF LAW The appellant did not submit a timely substantive appeal in connection with the February 2, 2010 determination denying entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Accordingly, the request for review on appeal of that issue is dismissed. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 20.202, 20.302(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Timeliness of Appeal The Board has considered whether the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010), is applicable to this claim. The VCAA defines VA's duty to notify claimants about the information and evidence necessary to substantiate a claim and the duty to assist claimants. The VCAA does not affect matters when the issue is limited to statutory interpretation, as is the case here. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 5-2004 (June 2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Indeed, even if the Board had jurisdiction to address the merits of the claim for benefits under the Filipino Veterans Equity Compensation Fund the rule announced in Dela Cruz would govern. Hence, the Board finds no prejudice toward the appellant in adjudicating this claim. The threshold question is whether the appellant filed a timely substantive appeal following the February 2, 2010 decision, which denied entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. If the appellant has not filed a timely substantive appeal, then his appeal fails. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). VA imposes duties on a claimant seeking benefits. If the claimant disagrees or is dissatisfied with a determination by the agency of original jurisdiction, the claimant has a duty to express disagreement with a decision of the VA by filing a notice of disagreement and to timely perfect the appeal by filing a substantive appeal following the issuance of a statement of the case. See 38 C.F.R. §§ 20.201, 20.202, 20.302(a), (b) (2012). As to the first step of initiating appellate review, the claimant is to submit a notice of disagreement within one year from the date that the agency mails notice of the determination to the claimant. See 38 C.F.R. § 20.302(a). After VA's preparation and mailing of the statement of the case, the claimant then has the burden to submit a timely substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b) . The law provides: Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination... The claimant will be afforded a period of sixty days from the date of the statement of the case is mailed to file the formal appeal. ... The agency of original jurisdiction may close the case for failure to respond after receipt of the statement of the case, but questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals . 38 U.S.C.A. § 7105 (West 2002); see also 38 C.F.R. § 20.302(b) . As to the appellant's claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, the RO issued a decision on February 2, 2010, which denied entitlement to the benefit sought. The appellant submitted a notice of disagreement in March 2010, indicating he was appealing the February 2, 2010 decision. On June 21, 2010, the RO mailed a statement of the case addressing the issue. Therein the appellant was informed, in part, of the following: What You Need To Do To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to the Board of Veterans' Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions. . . . When You Need To Do It You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. (Emphasis in the original.) On March 10, 2011, VA received a February 25, 2011 letter from the appellant regarding his appeal. Later in March 2011, the RO informed the appellant that the letter received on March 10, 2011, was not a timely substantive appeal and explained why. The appellant timely perfected an appeal to that determination. The Board has carefully reviewed the evidence of record and agrees with the RO that the appellant's March 2011 submission was not a timely-filed substantive appeal following the February 2010 decision. The reasons follow. The RO informed the appellant in the June 2010 statement of the case that in order to perfect his appeal, he needed to submit a substantive appeal within 60 days from the date the statement of the case was mailed or within one year from the date of the notification of the decision. See 38 C.F.R. § 20.302(b). The date the appellant was notified of the February 2010 decision was February 2, 2010. The date of the statement of the case was issued was on June 21, 2010. The appellant had the later of August 20, 2010, i.e., 60 days after the issuance of the statement of the case, or until February 2, 2011 to file a substantive appeal. The substantive appeal was received on March 10, 2011, i.e., after the expiration of the appeal period. His March 2011 submission was not a timely-filed substantive appeal as to the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. See 38 U.S.C.A. § 7105(d)(3), 7108; 38 C.F.R. § 20.302(b). The appellant has argued that he suffers from a poor memory, and that VA should excuse the tardy nature of his substantive appeal. Such an argument is an equitable one, and represents a request for equitable relief based on individual circumstances. The authority to award equitable relief under 38 U.S.C.A. § 503(a) (West 2002) is committed to the sole discretion of the Secretary. The Board has no authority under the law to grant equitable relief. McCay v. Brown, 9 Vet. App. 183, 189 (1996). In the absence of a timely-filed substantive appeal, the petition for appellate review as to the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is dismissed in accordance with 38 U.S.C.A. § 7108. The February 2010 decision is final. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993); see Roy v. Brown, 5 Vet. App. 554 (1993). ORDER A substantive appeal was not timely filed following the February 2010 decision, which denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ______________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs