Citation Nr: 1326691 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-28 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether a timely substantive appeal was filed regarding the issue of entitlement to Post-9/11-GI Bill (Chapter 33) educational assistance at the 100 percent level. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 2001 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 determination by the Department of Veterans Affairs (VA) Regional Office (RO) education processing center in Muskogee, Oklahoma, that the Veteran had not submitted a timely substantive appeal with respect to a decision finding that the Veteran was entitled to Post-9/11 GI Bill at the 90 percent rate. FINDINGS OF FACT 1. In November 2009, the RO informed the Veteran that he was entitled to Post-9/11 GI Bill at the 90 percent rate; he disagreed with the 90 percent rate, and a statement of the case was furnished in April 2010. 2. The substantive appeal was received in July 2011. CONCLUSION OF LAW The veteran did not perfect an appeal of a November 2009 decision by the submission of a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. Under such circumstances, Veterans Claims Assistance Act of 2000 notice is not required, because the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). In addition, there is no indication that any additional notice or development would aid the appellant in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); see Dela Cruz. In this regard, the Veteran was advised, in the September 2011 statement of the case addressing the timeliness issue, to submit evidence showing that he had moved before the April 2010 statement of the case had been sent, but he failed to respond. Additionally, he had been informed of the time limits for submission of a substantive appeal in the April 2010 statement of the case. Under these circumstances, there is no further duty to notify or assist the appellant in the development of his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Veteran was notified in November 2009 that he was eligible to receive Post-9/11 GI Bill educational assistance at the 90 percent rate in November 2009. In December 2009, he submitted a notice of disagreement with the assignment of benefits at the 90 percent rate. Later in December 2009, another decision was issued, awarding the Veteran Post-9/11 GI Bill benefits at the 90 percent rate. He was sent a statement of the case on the issue of whether the Post-9/11 GI Bill benefit level of 90 percent was correct; this document was mailed to his last reported address of record in April 2010. However, there was no correspondence or evidence received from the Veteran after that until his substantive appeal, dated in July 2011, was received that month. An appeal consists of a timely filed notice of disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. For an appeal to be timely, the claimant must file a notice of disagreement within the year after the RO sends notice of the adverse decision; and a substantive appeal must be filed within 60 days of issuance of the statement of the case, or within the remainder of the 1-year period which follows the RO's notice of the adverse decision, whichever period ends later. 38 C.F.R. §§ 20.200, 20.302. Here, the July 2011 substantive appeal was filed over six months after November 2010, the later of those dates. In his current substantive appeal as to the timeliness issue, the Veteran stated that after submitting his notice of disagreement in November 2009, he frequently called VA regarding his appeal. He said that he was told that it would take awhile for a decision to be entered, and that he should wait for VA to contact him with a response. He said he stopped calling, and, in the meantime, moved from California to Indiana. He said after a year had gone by, he called VA again, and was told that a Form 9 had been sent to him, which he had never received. He received a new Form 9, which he sent in, and then was told that it was untimely. However, the Veteran does not state that he never received the statement of the case sent in April 2010, which informed him that to complete his appeal, he must file a formal appeal, and that a Form 9 was enclosed, which he could use to complete his appeal. He was informed that he must file his appeal with that office within 60 days from the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he had appealed. He was informed that if VA did not hear from him within this period, his case would be closed. Even if a blank Form 9 were not included with the statement of the case, this would not extend the period for submission of a substantive appeal, because the notice of the requirement, in the cover letter accompanying the statement of the case, was in a separate document from the Form 9. Moreover, he was told, in the September 2011 statement of the case addressing the timeliness issue, that his request for an extension would be reconsidered if he provided proof that he was no longer living at the California address at the time the April 2010 statement of the case was mailed. He did not respond to this request. It is the Veteran's responsibility to keep VA apprised of his whereabouts; indeed, it is not clear how the Veteran expected to receive notification from VA of any decision in his pending appeal after his move to Indiana, if he did not inform VA of his change of address. In this case, the Board finds that he received legally sufficient notice, as the April 2010 statement of the case, with notification of the need to submit a formal appeal, such as a Form 9, was sent to his latest address of record, and he did not submit evidence which would show he had moved before he could have been expected to receive that document. See 38 C.F.R. § 3.1(q) (Notice means written notice sent to a claimant at his latest address of record). A substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, the issue of timeliness of the substantive appeal was developed by the RO, which provided notice to him that his substantive appeal had been found untimely in August 2011, with an explanation, and a statement of the case in September 2011. Thus, the circumstances present in Percy, where the RO acted as if the substantive appeal had been timely, are not present here. There are no other circumstances which would persuade the Board that the timeliness of the substantive appeal should be waived in this case. As discussed above, the substantive appeal was late by over six months, and the Veteran did not avail himself of the opportunity presented by the RO to provide evidence showing he had moved before receiving the April 2010 statement of the case. Additionally, there are no equitable considerations which call for the substantive appeal to be found timely, in the interests of fairness. In this regard, the issue originally appealed by the Veteran was the assignment of Post-9/11 GI Bill benefits at the 90 percent rate, instead of the 100 percent rate. The Veteran points out that he had 1,094 days of active service, and 1,095 days of active service would have satisfied the requirement for benefits at the 100 percent rate. He also states he would not have taken the early discharge he was offered if he had known the consequences. However, the periods of service required to establish entitlement to Post-9/11 GI Bill benefits at the various percentage rates are set by statute. See 38 U.S.C.A. §§ 3311(b)(3), 3313 (West Supp. 2013); 38 C.F.R. § 21.9640 (2012). Like other legal requirements which are based on dates, they are absolute requirements. For example, a U.S. citizen cannot vote one day before the date of his or her 18th birthday. The VA does not have the authority to adjust the Veteran's dates of service. He was in fact advised by the VA, in August 2011, to consider applying to his military branch for a correction of his discharge date, and given a form for that purpose. Should such action prove successful, he would be free to reopen his claim. Likewise, VA is not free to disregard the law. In this regard, federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed the benefit cannot be awarded, regardless of the circumstances. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER A substantive appeal with respect to the November 2009 RO decision denying entitlement to Post-9/11 GI Bill at the 100 percent rate was not timely filed; the appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs