Citation Nr: 1322666 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-15 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the Veteran's VA Form 9, Appeal to Board of Veterans' Appeals, was timely received to perfect an appeal as to the issue of entitlement to an initial disability rating in excess of 10 percent for the service-connected residuals of a cerebrovascular accident (hereinafter "CVA"). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1964 to February 1965 and from July 1989 to March 2005. This matter was initially before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a January 2008 determination letter issued by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Chicago, Illinois, which notified the Veteran that he failed to timely perfect an appeal as to the initial disability rating assigned for his service-connected residuals of a CVA. The Veteran disagreed with this decision and perfected an appeal as to the timeliness issue. In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (hereinafter "AMC") in Washington DC, for further development, to include scheduling the Veteran for either a Board videoconference hearing or Travel Board hearing at the RO. In May 2013 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"). A transcript of the hearing is associated with the eFolder on Virtual VA (hereinafter "Virtual VA"). Here, during the May 2013 hearing, the VLJ specifically clarified the issue on appeal. Additionally, the VLJ sought to identify any pertinent information/evidence not currently associated with the claims folder that might have been overlooked or was outstanding. Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on the foregoing, the Board finds that there has been substantial compliance with the April 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (hereinafter "Court") or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed Virtual VA to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed. Finally, in a VA Form 9, Appeal to Board of Veterans' Appeals, received in April 2009, the issue of entitlement to an evaluation in excess of 10 percent for the service-connected residuals of a CVA has been reasonably raised by the record, but, as noted by the Veteran's representative in an April 2011 Written Brief Presentation (hereinafter "WBP"), has not been adjudicated by the Agency of Original Jurisdiction (hereinafter "AOJ"). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. A November 8, 2005 rating decision, issued on November 10, 2005, granted entitlement to service-connected residuals of a CVA, and assigned a disability rating of 10 percent, effective March 31, 2005, the date following the Veteran's release from active duty. 3. The Veteran submitted a timely notice of disagreement (hereinafter "NOD") on April 7, 2006, and argued that he was entitled to an initial disability rating in excess of 10 percent for the service-connected residuals of a CVA. 4. The RO issued a statement of the case (hereinafter "SOC") on July 16, 2007. 5. The RO did not receive the Veteran's VA Form 9, Appeal to Board of Veterans' Appeals (hereinafter VA Form 9) until January 15, 2008, more than one year following the November 2005 decision and more than 60 days following the July 2007 SOC. CONCLUSION OF LAW The Veteran did not file a timely substantive appeal in response to the RO's November 2005 rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.202, 20.300, 20.302, 20.303, 20.304, 20.305, 20.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The notice and duty-to-assist requirements for VA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59,989 (2004); VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004). An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2012). A substantive appeal consists of a properly completed VA Form 9 or other correspondence containing the necessary information. 38 C.F.R. § 20.202 (2012). After a veteran receives the SOC, he must file a formal appeal within sixty days from the date the statement of the case is mailed or within the remainder of the one-year period from the date the notification of the RO decision was mailed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. § 20.302(b) (2012); Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542 (1992) (where a claimant did not perfect an appeal by timely filing a substantive appeal, the rating decision then becomes final). A veteran may request an extension of the 60-day period for filing a substantive appeal for good cause. The request for extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. §§ 20.202, 20.303 (2012). As noted, a November 2005 rating decision granted service connection for the residuals of a CVA. The Veteran was notified of this decision on November 10, 2005. On April 7, 2006, he filed an NOD. A SOC was issued on July 13, 2007. In correspondence dated on July 16, 2007, accompanying the SOC, the Veteran was informed that he had 60 days from the date of the SOC or the remainder of the one-year period from the date he was notified of the determination being appealed to file his substantive appeal, whichever was longer. As the 60 days from the date of the SOC was longer, the Veteran thus had until September 2007, to file an appeal. On January 15, 2008, the RO recorded receipt of the Veteran's VA Form 9. Notably, the Veteran submitted two VA Form 9's, both of which appeared to be photocopies with handwritten dates. The first was dated on January 7, 2008 and the second was dated on July 7, 2008. Accompanying the VA Form 9's was a VA Form 21-4138, Statement in Support of Claim, from the Veteran's representative, which indicated the Veteran had reported phoning the office over the past few months in regard to a reevaluation/reconsideration of his service-connected residuals of a CVA. The representative noted that one of the reasons for denial of the claim was for not submitting a VA Form 9 to appeal the matter to the Board, and reported that the Veteran instead had sent the VA Form 9 to the representative, who had in turn submitted the request to the RO. The representative noted that the Veteran was enduring a financial crisis and would soon be facing a foreclosure on his home, and argued that it would be in the best interest of both the Veteran and VA to reconsider the evidence of record and reevaluate the claim. In a letter dated on January 30, 2008, the RO informed the Veteran that his VA Form 9 (substantive appeal) was not timely filed, and that the record on his appeal was closed. In March 2008, the Veteran submitted an NOD as to the issue of the timeliness of the appeal. An SOC on the issue of timeliness was issued in April 2009. The Veteran submitted his VA Form 9 on the timeliness issue to the RO in April 2009. It is clear from the record that the Veteran did not file a Substantive Appeal within the 60 days from the date the RO mailed the July 2007 SOC or within the remaining one-year period from the date of the mailing of the notification of the November 2005 rating decision. The evidence of record also does not establish that the Veteran requested an extension of time from the RO in order to do so. A substantive appeal must be filed with the AOJ within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C.A. § 7104 (West 2002). In this case, there is no evidence that a timely substantive appeal was received by the originating agency prior to the receipt of the untimely substantive appeal at the RO on January 15, 2008. The Board finds that the Veteran was given proper notification of the unfavorable rating decision and the laws and regulations in the July 2007 SOC, and he has not asserted otherwise. The mailing of the SOC falls under the "presumption of regularity" for business documents. Absent clear and convincing evidence to the contrary, the official acts of public officials are presumed to have discharged their duty. Mindenhall v. Brown, 7 Vet. App. 271 (1994); Ashley v. Derwinski, 2 Vet. App. 62 (1992). The presumption of regularity is overcome only by clear evidence to the contrary. No clear evidence is shown in this case to rebut the presumption of regularity. Therefore, the date of mailing of the SOC, July 16, 2007, will be presumed to be the same as the date of the cover letter on the SOC. 38 C.F.R. § 20.302 (2012). With respect to a Veteran's contention that he was never notified of a previous RO decision or of his right to appeal that decision, the presumption of regularity applies to the mailing of notice of the RO decision to the veteran at his last known address of record. A Veteran's mere assertion of non-receipt of notice of a RO decision is not clear evidence to rebut the presumption of proper mailing. Evans v. Brown, 9 Vet. App. 273 (1996). As applied to this case, any assertion of non-receipt of the SOC does not provide a basis for excusing the Veteran's failure to submit an appeal within the time limit. The Board further notes that, it has been found that a substantive appeal could be timely filed, even though an SOC had not yet been issued by the RO. Archbold v. Brown, 9 Vet. App. 124 (1996). However, in the Veteran's case, no substantive appeal was filed prior to the issuance of the SOC. In this regard, following his April 7, 2006 NOD, the Veteran submitted a "VCAA Notice Response" on July 12, 2006, prior to the issuance of his July 2007 SOC. On October 13, 2006 he was notified of how the Decision Review Officer (hereinafter "DRO") and traditional appeal processes work. A VA Form 21-6789, Deferred or Confirmed Rating Decision, dated in May 2007, reflects that the Veteran was to be afforded a new VA examination to address the current severity of the Veteran's residuals of a CVA, which took place on May 15, 2007. However, at no point prior to or after the July 2007 SOC did the Veteran submit any statement or evidence of his intent to perfect an appeal to the Board, except for the submission of the January 2008 VA Form 9. Subsequent to the issuance of the January 2008 determination letter, a VA Form 119, Report of Contact, dated in February 2008, reflects that the Veteran contacted the RO to report that the VA Form 9 was not recognized when a decision was made on his appeal, and that the claim was closed. The Veteran requested that VA evaluate the claim with the submitted VA Form 9. Accompanying the Veteran's March 2008 NOD, as to the issue of the timeliness of the appeal, was a packet of information including argument to support an increased initial rating, evidence to support an increased initial rating and a new VA Form 9, dated on March 20, 2008, which indicated that the January 2008 determination letter was wrong. In the March 2008 VA Form 9, the Veteran argued that he had faxed a copy showing the VA Form 9 was originally sent on July 19, 2007 and not in January 2008. The Veteran asserted that the original copy was sent within the time allotted in January 2007, and again by his representative. The Veteran attached a rebuttal statement with supporting documents from his medical records, and the July 2007 VA Form 9. Again, the copy of the VA Form 9 was of the same type of photocopy as was previously submitted in January 2008; however, instead of there being a January 7, 2008 or July 7, 2008 date written in by hand, a "July 19, 2007" date was written in by hand. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. According to the regulation, the substantive appeal must set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination or determinations being appealed. 38 C.F.R. § 20.202 (2012). Although the Veteran has argued that he submitted a VA Form 9 in July 19, 2007, the same photocopied version of the VA Form 9 has been submitted with a variety of dates, including July 19, 2007, January 7, 2008 and July 7, 2008, handwritten into the "Date" area of the form; however, at no point has a copy of a VA Form 9 been date stamped by the RO prior to January 15, 2008. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Further, the RO promptly notified the Veteran in January 2008 that the appeal was untimely, effectively closing the case, and informed him of his rights to appeal that determination. The evidence does not show that VA performed any action that could be construed as continuing the appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waived objection to untimeliness of substantive appeal by taking actions which led the veteran to believe that an appeal had been perfected); Gonzalez- Morales v. Principi, 16 Vet. App. 556 (2002). In forming this opinion, the Board has considered the Veteran's and his representative's lay statements and testimony in support of his appeal. Specifically, the Veteran has asserted that he faxed a copy of his VA Form 9 on July 19, 2007, and not on January 15, 2008. However, the Board finds that this assertion and the supporting documentation meant to show that the Veteran submitted his VA Form 9 on time are of not credible. In the January 15, 2008 VA Form 21-4138, Statement in Support of Claim, which accompanied the Veteran's two VA Form 9's, the Veteran's representative reported that the Veteran submitted his VA Form 9 to the representative, who in turn forwarded the appeal on to the RO. However, the Veteran's representative did not report that the Veteran's VA Form 9 was dated or submitted prior to January 15, 2008. Thus, the Veteran's later assertion that he filed the VA Form 9 on July 19, 2007 is accorded no probative value as numerous copies of the same VA Form 9 with different dates have been submitted, without any probative evidence provided to support his argument that one of them was filed as a timely substantive appeal. In this case several factors that affect credibility weigh against the Veteran's testimony including this fact. See Macarubbo, supra. Moreover, the Board acknowledges the Veteran's representative's contention in the April 2011 WBP that the Veteran has suffered from dementia since May 2007, which caused him to believe he filed the VA Form 9 in July 2007, and that in the past the Veteran has had papers misfiled in his older brother's claims file. However, a May 2007 VA examination report shows that the Veteran complained of trouble with concentrating and losing his train of thought; yet, he was found to be capable of managing his own financial affairs, and there were no findings that would indicate he was incapable of filing a timely substantive appeal in 2007. Also, the Board notes that the Veteran has alleged that his papers were misfiled in his brother's claims file in October 2009, not in 2007, thus the misfiled documents would have no bearing on this matter. Further, the misfiled documents did not reveal that the Veteran filed a timely substantive appeal in 2007. The Board understands the argument presented by the Veteran, but unfortunately, the law is clear. A substantive appeal must be filed with the AOJ within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C.A. § 7104 (West 2002). In this case, there is no evidence that the substantive appeal was received by the originating agency prior to its receipt at the RO on January 15, 2008. In summary, because the Veteran did not file a timely VA Form 9 with respect to the November 2005 rating decision, the Veteran's claim with respect to the timeliness of the appeal is denied. ORDER The Veteran's substantive appeal, received on January 15, 2008, was not timely filed to perfect a timely appeal of the RO's November 2005 decision. The appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs