Citation Nr: 1322730	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-24 354	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an extension of time to submit evidence.

(The issue of entitlement to service connection for a lumbar spine disability will be addressed in a separate decision).


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from July 1955 to July 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Board notes that the Veteran requested a hearing with regard to this claim.  However, as the Board below is granting in full the benefit sought, there is no prejudice in not affording the Veteran a hearing.


FINDING OF FACT

Good cause for why the evidence sought to be submitted was not submitted within the time period allotted has been shown.


CONCLUSION OF LAW

The criteria for a grant of an extension of 90 days for the submission of additional evidence have been met.  38 C.F.R. § 3.109 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a 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 and 3.326(a) (2012).  In this case, the Board is granting the Veteran's extension of time to file evidence.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

In February 2009 the Veteran's then representative requested an extension of 90 days.  The request indicated that information was requested from the "Military Personnel Records Center" and that they were awaiting a response.  The then representative indicated that information from the Military Personnel Records Center as well as additional information from other medical providers is needed in order to reply to the Supplemental Statement of the Case issued in January 2009.  

The RO in a rating action dated in March 2009 denied the request.  The RO cited 38 C.F.R. § 3.109(b) which states:

Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown.  Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary 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 than it was.  Denials of time limit extensions are separately appealable issues.

The Board finds that good cause was shown in the February 2009 request for an extension 90 days to submit evidence in relation to the Veteran's claim.  

Although the Veteran did not submit additional evidence along with his request for an extension of time to submit additional evidence, the Board finds that the Veteran has presented good cause for why the evidence sought to be submitted was not submitted within the time period allotted.  As such, entitlement to an extension of 90 days, from the date of issuance of this decision, to submit additional evidence in support of the Veteran's claim is granted.


ORDER

A 90 day extension of time to submit evidence is granted.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs