Citation Nr: 1337530 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-20 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether a VA Form 9, Appeal to the Board of Veterans' Appeals, received on September 15, 2010 regarding a service connection claim for a back disability, was timely filed. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from November 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which found that the Veteran's VA Form 9 received on September 15, 2010 was not timely filed. In March 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing at the RO. The issue of entitlement to service connection for a back disability 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. After being issued a July 13, 2010 statement of the case, the Veteran's VA Form 9 was date stamped as received at the RO on September 15, 2010, in an attempt to appeal a July 2009 rating decision denying service connection for a back disability. 2. The Veteran and his representative have submitted sworn testimony that notwithstanding the date stamp from the RO, the VA Form 9 was hand delivered to the RO on September 13, 2010, and is thus timely. CONCLUSION OF LAW The Veteran's September 2010 substantive appeal (VA Form 9) was timely filed as to the July 2009 rating decision that denied service connection for a back disability. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 20.101, 20.302, 20.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim for whether he has submitted a timely substantive appeal has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.201. A Substantive Appeal must be filed within 60 days from mailing of an SOC, or within the remainder of a 1 year period from date of mailing of notice of the denial, whichever ends later. 38 C.F.R. § 20.302(b). In this case, the Veteran filed a notice of disagreement with a July 2009 rating decision that denied service connection for a back disability. Notice of that July 2009 decision had been provided to the Veteran by way of an August 3, 2009 VARO notice letter with accompanying appellate rights. After receipt of the Veteran's notice of disagreement, he was then provided with a statement of the case that was dated, July 13, 2010. A VA Form 9 substantive appeal was date stamped as a received by the RO on September 15, 2010, which would be two days after the 60-day time frame from the date of the statement of the case. The RO notified the Veteran in September 2010 that his appeal was considered untimely. The Veteran and his representative argued at the March 2012 Board hearing that the Veteran mailed his VA Form 9 to his representative; and then the representative hand-delivered the VA Form 9 to the RO on September 13, 2010. The representative testified that the RO apparently held on to the VA Form 9 for two days before date stamping it. He noted that it was customary for them to leave the VA Forms 9 with the RO without waiting for verification of the date stamp, given the volume of appeals that are handled by the veterans service organization. The record shows a receipt of transmittal dated September 10, 2010 from the Veteran to his representative and a letter from the Veteran's representative dated September 13, 2010 accompanying the VA Form 9 noting that they were submitting the attached substantive appeal on behalf of the Veteran. The Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Board accepts the Veteran's and his representative's sworn statements as credible evidence that a good faith effort was made on their behalf to submit a VA Form 9 for the issue of service connection for a back disability on a timely basis. Therefore, the Board waives the issue of timeliness in this case and accepts the VA Form 9 date stamped by the RO on September 15, 2010 as timely. ORDER A VA Form 9, Appeal to the Board of Veterans' Appeals, received on September 15, 2010 addressing the issue of service connection for a back disability, was timely filed, and the claim to this extent only is granted. REMAND The Veteran requested a Board videoconference hearing on his VA Form 9 appealing his service connection claim for a back disability, which the Board has deemed timely filed in the above decision. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Board videoconference hearing in Cleveland as soon as practicable. Both he and his representative should be notified of the date, time, and location of the hearing. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs