Citation Nr: 1320441 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 13-03 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant's January 2012 substantive appeal to the October 2010 rating decision was timely filed. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 determination by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO), that a substantive appeal was not timely filed as to an October 12, 2010 RO decision which denied a claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 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). FINDINGS OF FACT 1. The appellant did not file a substantive appeal discussing errors of fact or law within 60 days of the date on which the Statement of the Case was sent to the appellant, or within the remainder of the one-year period from the date of the October 12, 2010 letter notifying him that his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund was denied. 2. The appellant did not timely request an extension of time in order to file an appeal to the October 12, 2010 RO determination, and did not request an extension of time to file his substantive appeal with good cause shown when he filed his substantive appeal in January 2012. 3. The RO did not waive timely filing of a substantive appeal, and there is no evidence that the appellant was physically or mentally incapacitated, or that extraordinary circumstances existed, such that equitable tolling of the filing deadline is warranted. CONCLUSION OF LAW A timely substantive appeal was not filed as to the October 12, 2010 RO decision which denied a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and as such, that decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.109, 20.302(b), 20.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify a claimant of the information and evidence not of record that is necessary to substantiate a claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. VA was not required to provide the appellant with such notice in this case, as it is one where entitlement to the benefit claimed cannot be established as a matter of law. See 38 C.F.R. § 3.159(b)(3)(ii) (2012). This extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts. See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As the pertinent facts in this case are undisputed, and the law as mandated by statute, and not the evidence, is dispositive of this appeal, the Board finds that no further action is required pursuant to the duties to notify and to assist. See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). The appellant does not dispute that his substantive appeal was not timely filed in this case. Instead, he contends that he was confused about the filing deadlines and thought that he had one year from the date of the Statement of the Case to file his appeal, and not 60 days from the date of the Statement of the Case. He indicated that he wrote a letter to the National Personnel Records Center (NPRC) within 60 days from the date of the Statement of the Case. A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals), or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction 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 determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). Within the VA regulatory system, the Board is the sole arbiter of decisions concerning the adequacy of a substantive appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.101(d). For purposes of determining whether a substantive appeal has been timely filed, 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 and the date of mailing of the letter of notification of the determination (the rating decision, in this case) will be presumed to be the same as the date of that letter. Id. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of good cause. However, the United States Court of Appeals for Veterans Claims (Court) has held that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231 (1992). Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner. Thus, a claimant who fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996). Here, an October 12, 2010 VA letter notified the appellant that his claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC) had been denied. In his November 2010 notice of disagreement, the appellant asserted that he is entitled to a one-time payment from the FVEC, and that the evidence that he submitted in support of his claim establishes his entitlement. In a letter enclosed with the Statement of the Case, dated May 10, 2011, the appellant was advised that To complete your appeal, you must file a formal appeal. We have enclosed a VA Form 9, Appeal to the Board of Veterans' Appeals, which you may use to complete your appeal. . . . 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 original). Thereafter, the appellant submitted a VA Form 9 with supporting evidence, which was received by VA on January 25, 2012. The appellant's January 2012 VA Form 9 does not reflect a request for an extension of time for filing his substantive appeal. In a February 2012 letter, the RO notified the appellant that his January 2012 substantive appeal was not timely. The appellant timely appealed the RO's February 2012 determination that his January 2012 substantive appeal was not timely. There was no written document received within 60 days of the date on which the Statement of the Case was sent to the appellant, or within the remainder of the one-year period from the date of the October 12, 2010 letter notifying him of the RO determination. As such, the Board finds that the appellant did not file a timely substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). There are three possible exceptions to the finality rule in this case. First, the filing limit could be tolled with a timely request for an extension of time to submit a substantive appeal under 38 C.F.R. § 20.203 or an extension of the filing deadline under 38 C.F.R. § 3.109. However, the first communication received by VA after the May 2011 Statement of the Case was issued was received by VA in January 2012, well beyond the October 2011 date by which the appellant had to submit his substantive appeal. The appellant did not submit a request to extend the appeal period when he filed his appeal, and did not present good cause for his failure to file a timely substantive appeal at that time; thus, a timely request for an extension of time to submit a substantive appeal was not filed. Second, some RO actions may operate as a waiver of the time requirements for filing a substantive appeal. See Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that a claimant's failure to file a timely substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32); see also Percy v. Shinseki, 23 Vet. App. 37 (2009). However, there is no evidence that the RO continued to treat the case as an active appeal; no Supplemental Statements of the Case, or correspondence to the appellant, are of record as having been dated such that it was not considered closed by the RO after the deadline for filing a substantive appeal had passed, and the record does not reflect that the RO formally or informally waived the time requirements for filing a substantive appeal. Finally, the doctrine of equitable tolling has been considered. The United States Court of Appeals for the Federal Circuit has noted that in order to obtain the benefit of equitable tolling, a claimant must show that the failure to file was the direct result of a mental illness that rendered him or her incapable of rational thought or deliberate decision making, or incapable of handling his or her own affairs or unable to function in society. See Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). Additionally, "extraordinary circumstances" can invoke consideration of the principles of equitable tolling. McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005). Although the appellant indicated in his January 2013 substantive appeal that he is 93 years old and very sick, he does not allege, and the evidence does not suggest, that his failure to file a timely substantive appeal was due to mental incapacity. In this case, the appellant serves as his own representative in his proceedings with the RO and has presented various written submissions, especially with respect to the substantive appeal timeliness issue that is the subject of the instant decision, which reflects that he is capable of reading, analysis, and argument. Accordingly, the appellant has not demonstrated that his failure to file a timely substantive appeal was due to mental incapacity. The U.S. Court of Appeals for Veterans Claims adopted a three-part test to determine the appropriateness of equitable tolling based upon extraordinary circumstances, as follows (1) the extraordinary circumstance must be beyond the appellant's control; (2) the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the appellant must exercise "due diligence" in preserving his or her appellate rights, meaning that a reasonably diligent appellant, under the same circumstances, would not have filed a timely appeal. In this case, the appellant contends that his failure to file a timely substantive appeal was the result of mistake or confusion on his part about the filing deadlines. The appellant does not describe any extraordinary circumstance beyond his control which prevented him from timely filing his substantive appeal; he contends that his failure to timely file a substantive appeal was a mistake. The appellant's misunderstanding regarding whether he was required to file his substantive appeal within one year from the date of the Statement of the Case or within 60 days from the date of the Statement of the Case does not reflect an extraordinary circumstance beyond his control. Indeed, the appellant was notified in the May 2011 Statement of the Case of the deadlines to file his substantive appeal. His failure to exercise due diligence in reading the contents of the Statement of the Case does not establish a basis for equitable tolling of the filing deadline. Moreover, ignorance of the law cannot be used as an excuse for failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). In Morris v. Derwinski, the U.S. Court of Appeals for Veterans Claims noted that the U.S. Supreme Court has held that persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. See Morris, 1 Vet. App. at 265. As such, the Board finds no basis for equitable tolling of the filing deadline. In sum, the Board finds that the appellant did not file a substantive appeal discussing errors of fact or law with regard to the October 12, 2010 RO determination within the appeal period or timely request an extension of time to do so. The RO did not waive timely filing of a substantive appeal, and there is no showing of physical and/or mental incapacity to warrant equitable tolling of the filing deadline. The appellant's appeal as to a timely filed substantive appeal must be denied. ORDER The appeal as to whether the appellant's January 2012 substantive appeal to the October 2010 RO determination was timely submitted is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs