Citation Nr: 1326322 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-28 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether a timely substantive appeal was filed to the November 2009 RO determination which denied entitlement to payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Entitlement to payment from the FVEC fund. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The appellant alleges military service in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) from November 2009 and November 2011 decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, 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). The issue of entitlement to payment from the FVEC fund is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant was notified in November 16, 2009 correspondence that the RO denied his claim for entitlement to a payment from the FVEC fund. 2. The appellant filed a notice of disagreement (NOD) with the November 2009 RO decision and he was issued a Statement of the Case (SOC) on July 1, 2010. 3. The appellant filed a substantive appeal, which was received in August 2010, which was within 60 days of the July 1, 2010 SOC and also within one year of the November 2009 RO decision. CONCLUSION OF LAW A timely substantive appeal to the November 2009 RO decision was filed in August 2010. 38 U.S.C.A. § 7105(a),(b),(c),(d) (West 2002), 38 C.F.R.§§ 20.200, 20.202 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The timeliness of substantive appeal is a jurisdictional matter and is governed by the interpretation of law. In such a case, VA's duty to assist and notify an appellant is not applicable. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The appellant has been properly notified of the jurisdictional problem and he has been afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. Legal Criteria The Board has jurisdiction of an appeal when there is a timely filed notice of disagreement and, after a Statement of the Case (SOC) has been furnished, a timely substantive appeal has been filed. 38 C.F.R. § 20.200. After an appellant receives the SOC, the appellant must file a formal appeal within sixty days from the date the SOC was mailed, or within the remainder of the one-year period, if any, from the date the notification of the RO's decision was mailed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 20.300, 20.302. The Board determines questions as to timeliness. 38 U.S.C.A. § 7105(d)(3). A substantive appeal consists of a properly completed VA Form or correspondence containing the necessary information. 38 C.F.R. § 20.202. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the SOC and any prior Supplemental SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. 38 C.F.R. § 20.202. Analysis The question before the Board is whether the appellant submitted a timely substantive appeal to a November 2009 RO decision. The record reflects that in a letter dated on November 16, 2009, the RO denied the appellant's claim for FVEC compensation. In December 2009, the RO received correspondence from the appellant, which it considered as a notice of disagreement (NOD). The RO issued a statement of the case (SOC) on July 1, 2010. The July 1, 2010 correspondence informed the appellant as follows: "to complete your appeal, you must file a formal appeal." It also notified him that he must file his appeal with the Manila, Philippines office within 60 days from the date of the July 1, 2010 letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that has been appealed (i.e. the November 16, 2009 letter). The letter informed the appellant that if the RO did not hear from him within the applicable time period, it would close his case. He was also notified that if he needed more time to file his appeal, he should request more time before the time limit for filing the appeal expired. " An enclosed VA Form 9 was provided. As noted above, the notification of the denial of the appellant's claim was dated on November 16, 2009. The SOC was issued on July 1, 2010. The one year time period from the denial, in which to file a substantive appeal, expired in November 2010. The 60 day time period from the July 1, 2010 SOC expired on August 30, 2010. Therefore, the appellant had until November 16, 2010, the latter of the dates, to file a substantive appeal. On August 12, 2010, the appellant submitted correspondence and documents to support his claim. The documents were purported to be those of the appellant's "cousin and comrade" with whom he allegedly served. The RO issued an SSOC in August 2010. In September 2010, the appellant again submitted correspondence and additional documents to the RO in support of his claim. The documents were those of alleged Veterans, other than the appellant. At the same time, the appellant also submitted an "SSOC Notice Response" form in which he indicated that he had more evidence to submit and that he understood that if it was not submitted within the 30 day period, his case would be returned to the Board of Veteran's Appeals. VA received a VA Form 9 from the appellant on August 2, 2011; thus, it was not timely. In order to be a timely VA Form 9, it would have had to have been submitted prior to November 17, 2010. However, the Board must also consider whether the August and September 2010 correspondence from the appellant can be construed as a timely substantive appeal. As noted above, a substantive appeal consists of a properly completed VA Form or correspondence containing the necessary information. 38 C.F.R. § 20.202. A liberal reading of the appellant's correspondence reflects that he intended to appeal the denial, and that he was submitting records of other alleged Veterans from his unit to support his position that he did have the requisite service. In addition, in the September 2010 correspondence, the appellant specifically stated that he was responding to the August 18, 2010 VA letter, which accompanied the SSOC. His response to the SOC and submission of additional evidence reflects an indication that he intended to file a substantive appeal. His SSOC response form also indicates that he intended to appeal his claim. Based on the foregoing, the Board finds that a substantive appeal was timely because it was filed within one year of the November 16, 2009 notification of the denial of his claim. ORDER The appellant filed a timely substantive appeal to the November 2009 decision which denied entitlement to FVEC, and to that extent only, the appeal is granted. REMAND As noted above, the appellant submitted additional evidence to the RO in September 2010. Such evidence associated with the claims folder after the issuance of the August 2010 SSOC. As such, the RO has not considered such evidence in compliance with Bernard v. Brown, 4 Vet. App. 384, 394 (1993). No waiver of initial RO consideration is currently of record. Thus, the claim must be remanded for the RO to consider the evidence and to issue another SSOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Readjudicate the issue on appeal with consideration of the evidence received after the August 2010 SSOC. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the appellant with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs