Citation Nr: 1326694 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 12-32 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether a timely substantive appeal regarding the issue of entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund was filed. ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The appellant claims he had recognized guerilla service in the United States Armed Forces from December 1943 to May 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The RO notified the appellant in a rating decision issued on May, 3, 2010, that entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund was denied. 2. The appellant submitted a timely notice of disagreement, received on July 23, 2010, and a statement of the case was issued on April 25, 2011. 3. The appellant submitted a VA Form 9, substantive appeal, received on October 4, 2011, which was more than 60 days after April 25, 2011, the date the statement of the case was issued, and more than one year from May 3, 2010, the date the appellant was notified about the denial of his claim. 4. The appellant did not submit a request for an extension of the time limit for filing the substantive appeal prior to the expiration of the time limit for filing the appeal. CONCLUSION OF LAW The appellant did not file a timely appeal to the issue of entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 7105, 7108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.109, 20.200, 20.202, 20.302, 20.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 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, 3.326(a) (2012). This is so, because, as discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on statutory interpretation. The aforementioned notice and development requirements are therefore inapplicable and need not be considered with regard to this claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-04, 69 Fed. Reg. 59989 (2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Consequently, the Board is not required to address the RO's efforts to comply with the aforementioned notice and duty to assist provisions, with respect to the issue of whether the appellant filed a timely substantive appeal. The appellant contends that he submitted a timely substantive appeal with regard to a May 3, 2010 decision in which the RO denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. For the reasons set forth below, the Board finds that a timely substantive appeal was not filed. Hence, the Board is without jurisdiction to consider the claim. The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108. VA regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions an appellant must take in order to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the RO mails the statement of the case to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). If a claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he or she is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992); cf. Rowell v. Principi, 4 Vet. App. 9 (1993). In this case, a letter from the RO dated May 3, 2010 notified the appellant that his claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund had been denied, in a May 2010 decision. The appellant submitted a notice of disagreement, received on July 23, 2010, and a statement of the case was issued on April 25, 2011. In a cover letter accompanying the statement of the case, the RO stated: To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to Board of Veterans' Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions . . . . You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. VA received the appellant's VA Form 9, substantive appeal, dated July 21, 2011, on October 4, 2011. This document was received well after the time limit for filing a substantive appeal, which, in this case, was June 25, 2011 or May 3, 2011, one year after the appellant was notified that the RO had denied his claim. As a result, the RO notified the appellant in an October 15, 2011 letter that his substantive appeal was untimely. The appellant considers the appeal timely, and has filed a timely appeal with respect to the issue of whether a substantive appeal was timely submitted to the May 3, 2010 RO decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant does not dispute the chronology of events in this case, nor has he offered a substantive argument as to why he believes that his substantive appeal was timely filed. The Board finds that the evidence of record shows that the appellant's substantive appeal was not timely filed. Furthermore, the evidence of record does not reflect that a timely request for an extension of the time limit for filing his substantive appeal was made by the appellant. See 38 C.F.R. §§ 3.109(b), 20.303. Accordingly, the appeal is denied and the Board is currently without jurisdiction to consider the underlying claim. (CONTINUED ON NEXT PAGE) ORDER A substantive appeal regarding the issue of entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund was not timely filed; the appeal is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs