Citation Nr: 1323126 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-31 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether a timely appeal was filed following an August 2008 rating decision that denied claims of entitlement to service connection for sleep apnea and a herniated disc and denied a claim to reopen the issue of entitlement to service connection for asthma. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to June 2002 with an additional 3 months and 4 days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). In May 2011, the Veteran testified before the undersigned via a videoconference hearing. A copy of the transcript has been associated with the record. FINDINGS OF FACT 1. Notice of the Statement of the Case was dated September 10, 2009. 2. The evidence is in equipoise as to whether the Veteran's substantive appeal was received by VA on November 10, 2009. CONCLUSION OF LAW The criteria for a timely filed substantive appeal have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The duty to notify and assist does not apply to the instant claim. In the present case, the issue is the timeliness of the Veteran's substantive appeal. The facts are not in dispute and the issue in this appeal will be determined by applying the relevant laws and regulations to the facts. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (noting that where "the law as mandated by statute, and not the evidence, is dispositive of [the] claim, the [Veterans Claims Assistance Act] is not applicable"). Regardless, the Board is fully allowing the claim so no prejudice follows to the Veteran. Generally, the Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2012). Appellate review is initiated by the timely filing of a Notice of Disagreement, and is completed by the timely filing of a substantive appeal after a Statement of the Case has been furnished. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). A decision as to the timeliness and adequacy of a substantive appeal will be made by the Board. 38 U.S.C.A. § 7108 (West 2002); 38 C.F.R. § 20.101(c), (d) (2012). In order for a claimant to perfect an appeal, the substantive appeal must be filed within 60 days from the date that the RO 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 original determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b); see also 38 C.F.R. § 20.300 (2012) (noting, in pertinent part, that the Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed). 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 for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b). In computing the time limit, the first day of the specified period will be excluded and the last day included. Id.; 38 C.F.R. § 20.305(b). Where the time limit expires on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. Id. In October 2007, the Veteran submitted claims of entitlement to service connection for both sleep apnea and a herniated disc and a claim to reopen the issue of entitlement to service connection for asthma. After these claims were denied in an April 2008 rating decision, the Veteran timely filed a Notice of Disagreement. 38 C.F.R. § 20.302(a). The RO readjudicated the Veteran's claims, confirming and continuing the denials thereof. The RO issued the Veteran a Statement of the Case dated on September 10, 2009. Given that the Statement of the Case was issued or mailed to the Veteran on September 10, 2009, in order to perfect an appeal, the Veteran's substantive appeal was required to have been received by November 10, 2009, which represents the 60th day after the mailing of the Statement of the Case. See 38 C.F.R. § 20.302(b). In a February 2010 administrative decision, the RO determined that the Veteran did not submit a timely substantive appeal. Specifically, the RO determined that the Veteran's substantive appeal was not timely because it was time-stamped as received by VA on November 30, 2009, 20 days after the November 10, 2009 deadline. The Veteran timely perfected an appealed of the RO's administrative decision, claiming that her November 2009 substantive was timely. This matter has been certified to the Board for appellate review. In support of her claim that her November 2009 substantive appeal was timely, the Veteran submitted tracking documentation from a private postal delivery service. This documentation showed that she mailed the substantive appeal to her representative on November 5, 2009, via overnight service. The mailing address used by the Veteran indicated that the representative's office was housed within a VA facility. Further, the submitted tracking documentation showed that the substantive appeal was received by that VA facility on November 6, 2009, at 8:32 am. Despite being received at the VA facility on November 6, 2009, the Veteran's representative asserted that the Veteran's substantive appeal was not actually received until the morning of November 10, 2009. The Veteran's representative asserted that this was due to the VA facility's internal processing of mail; there was no evidence of record supporting or contradicting this assertion. Further, the Board observes that November 6, 2009, was a Friday, and, thus, November 7 and 8, 2009, were a Saturday and Sunday, respectively. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b) that courts may take judicial notice of facts not subject to reasonable dispute). The Veteran's representative stated that, immediately upon receiving the Veteran's substantive appeal on the morning of November 10, 2009, a cover letter was drafted and associated therewith. Indeed, the cover letter attached to the Veteran's substantive appeal was dated November 10, 2009. The representative stated that the Veteran's substantive appeal and the cover letter were then transferred to their triage unit for submission to VA on November 10, 2009. The evidence of record does not include documentation showing, if the Veteran's substantive appeal and the representative's cover letter were submitted to VA on November 10, 2009, why each was time-stamped as received by VA on November 30, 2009. The Veteran's representative posited that this 20-day lag in time was possibly attributable to VA's inadvertent failure to timely process the submission; however, affirmative evidence of such was not associated with the Veteran's claims file, nor was there evidence to contradict this contention. In sum, the evidence demonstrated, by way of the tracking documentation, that the Veteran's substantive appeal was submitted to her representative four days prior to the 60-day deadline. For reasons unknown to the Board and not definitively illuminated by the evidence of record, the Veteran's substantive appeal was not time-stamped as received by VA for 24 days thereafter. The Board is confronted with two contradictory pieces of evidence: the representative's cover letter, dated November 10, 2009, which suggests the timely submission of the Veteran's substantive appeal, especially given that the representative's office is within a VA facility; and VA's time-stamp of November 30, 2009, which suggests that the submission of the Veteran's substantive appeal was tardy. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (holding that "[t]he [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary."). The Board is unable to reconcile this evidence and, thus, finds that the evidence of record as to the timeliness of the Veteran's November 2009 substantive appeal is in equipoise. Consequently, with generous application of the doctrine of reasonable doubt, the Board finds that the evidence of record demonstrated that the Veteran's November 2009 substantive appeal was timely. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The Veteran timely perfected an appeal of the April 2008 denial of the claims of entitlement to service connection for sleep apnea and a herniated disc and the claim to reopen the issue of entitlement to service connection for asthma, and the appeal is granted to this extent only. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs