Citation Nr: 1328332 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-33 417 ) 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 was filed. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran reportedly served on active duty from February 1946 to May 1966. He died in March 2006. The appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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). FINDINGS OF FACT 1. On January 27, 2010 the RO notified the appellant that the appeal of the earlier effective date for the award of dependency and indemnity compensation (DIC) benefits was not timely filed. 2. In May 2010, the appellant filed a notice of disagreement (NOD) with the January 2010 RO decision regarding timeliness. 3. On December 3, 2010, a statement of the case (SOC) was sent to the appellant that addressed the timeliness of the appellant's appeal of the claim for an earlier effective date for the award of DIC benefits. 4. A substantive appeal was not received within 60 days from the December 3, 2010 mailing of SOC or within one year from the mailing of notification of the January 27, 2010 decision. 5. On April 14, 2011, the RO notified the appellant that the appeal of the timeliness of the appellant's claim for an earlier effective date for the award of DIC benefits was itself not timely filed. 6. In June 2011, the appellant filed a NOD with the April 2011 RO decision and after an SOC was issued in November 2011, and a substantive appeal filed in April 2011, this appeal came to the Board. CONCLUSION OF LAW A timely substantive appeal was not filed for a claim that a timely substantive appeal had been filed for a claim of an earlier effective date for the award of dependency and indemnity compensation benefits. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 3.104, 19.30, 19.34, 20.200, 20.202, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA does not apply to the issue on appeal, however, because the matter does not involve the substantiation of the underlying claim, but rather involves the procedures for appealing a decision. The facts are not in dispute and the application of the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Criteria & Analysis An appeal consists of a notice of disagreement filed within one year of the notice of the decision being appealed, and after a statement of the case has been furnished, a timely filed substantive appeal. A substantive appeal is timely if received within 60 days of the date of the statement of the case, or within the one year period following notice of the decision at issue. If an appeal of a decision is not perfected, the decision becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.1103. A January 2008 rating decision issued on February 11, 2008 awarded the appellant DIC benefits, effective October 2, 2007. In April 2008, the appellant filed a timely NOD regarding the effective date. For clarification purposes, the Board will address the earlier effective date claim as issue "A". On November 12, 2008, the RO issued a SOC with regard to issue A. More than one year later, in correspondence dated December 11, 2009, and received on December 18, 2009, the appellant indicated that she was appealing issue A. A January 27, 2010 letter notified the appellant that the December 2009 appeal of issue A was not timely filed. For clarification purposes, the Board will address as issue "B" the question of whether a timely substantive appeal had been filed for issue A. In May 2010, the appellant filed a timely NOD with issue B. On December 3, 2010, the RO issued a SOC to the appellant addressing issue B. In correspondence dated December 23, 2010, post marked February 23, 2011 and received on March 3, 2011, the appellant indicated that she was appealing issue B. An April 14, 2011 letter notified the appellant that the appeal of issue B received on March 3, 2011 was not timely filed. For clarification purposes, the Board will address as issue "C" the question of whether a timely substantive appeal had been filed for issue B. (It is issue C that is presently before the Board.) In June 2011, the appellant filed a timely NOD with issue C. On November 3, 2011, the RO issued a SOC to the appellant addressing issue C. In correspondence dated November 27, 2011, and received on December 2, 2011, the appellant timely filed an appeal for issue C. When a SOC is issued, an appellant and her representative will also be furnished: information on the right to file, and time limit for filing, a substantive appeal; information on hearing and representation rights; and a VA Form 9 (Appeal to the Board). 38 C.F.R. § 19.30(b). In this case, the December 3, 2010 cover letter to the December 2010 SOC addressing issue B, included the requisite information, and a VA Form 9 was listed as an enclosure. The letter told the appellant that she must file an appeal with the RO within 60 days of the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying her of the action that she had appealed. The letter also informed the appellant that an extension could be requested before the time limit for filing the appeal expired. Thus, the December 2010 SOC does not reveal any errors or inaccurate information regarding the statutory period for perfecting the appeal of issue B. Proper completion and filing of a substantive appeal are the last actions that an appellant needs to take to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202. While the appellant in May 2010 did file a timely NOD in connection with the January 2010 rating action, the undisputed facts in this case demonstrate that she did not file a timely substantive appeal, that is, she did not communicate a desire to perfect appellate review of issue B, within either (i) 60-days of the December 2010 SOC or within (ii) one-year of being notified of the RO's original determination related to this claim (on January 27, 2010). For this reason, the January 2010 rating action denial became final. 38 U.S.C.A. § 7105(b)(1), (d)(3); 38 C.F.R. §§ 3.104, 20.302(b), 20.1103. The appellant contends that she was not advised on the rules of continuous prosecution. However, with respect to any account that her substantive appeal with regard to issue B was filed in a timely manner, the Board finds that the appellant's statements do not change the fact that the VA correspondence in question (December 3, 2010), as noted above, does not reveal any errors or inaccurate information regarding the statutory period for perfecting her appeal. Additionally, the appellant contends that she had no fault in not filing a timely appeal with regard to issue A. However, as noted above, the issue of whether a timely appeal was filed with regard to issue A is not the issue on appeal before the Board. While VA is granted the authority to waive the issue of timeliness in the filing of a Substantive Appeal, such waiver is not mandatory, did not occur in the present case, and is not warranted in the present fact situation. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding that, because an issue was treated as if it were timely perfected for more than five years before being raised by the Board in the first instance, any issue concerning timely filing of the substantive appeal was waived by VA). As distinguished from the situation in Percy, in this appellant's case, the question of timeliness of substantive appeal with regard to issue B was noted by the RO and adjudicated even prior to the issue arriving at the Board; at no time has the RO or the Board failed to recognize the absence of a timely substantive appeal or proceeded to address the issue on the merits as if a timely substantive appeal had been filed with regard to issue B. In this case, following receipt of the appellant's untimely December 2010 statement, on March 3, 2011, the RO informed the appellant that her letter received on March 3, 2011 was not timely received and could not act as a substantive appeal to the January 2010 rating action. Equitable tolling also is justified in "extraordinary circumstances." McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met, however: (1) the extraordinary circumstance must be beyond the appellant's control, (2) the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the appellant must exercise "due diligence" in preserving his/her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id. In considering whether extraordinary circumstances were present so as to justify tolling the filing period, the appellant did not show due diligence in preserving her appellate rights. Had the appellant made any minimal expression of disagreement or desire to appeal issue B, a liberal interpretation of such writing may have discerned an intent to continue such appeal, or may have even been interpreted as a request for extension of time to file a substantive appeal; however, in this case, because the appellant's response was silence, there is no timely writing of record that could be construed as a substantive appeal with regard to issue B. In the absence of any timely response on her part, there is no basis to find a timely substantive appeal, to find a request for extension of time for a substantive appeal, or to find a basis for equitable tolling of the timeliness requirement for filing any document that could be construed as a substantive appeal with regard to issue B. In sum, the appellant did not perfect a timely appeal of issue B. In addition, the criteria for equitable remedies are not met in this case. Accordingly, this appeal is denied. ORDER The appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs