Citation Nr: 1338883	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  11-08 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Whether a timely substantive appeal was filed with regard to an April 2008 rating decision that denied entitlement to service connection for a low back condition.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Barner, Associate Counsel 

INTRODUCTION

The Veteran had active duty service from April 1966 to January 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, in which the RO determined that the Veteran's November 30, 2009 substantive appeal was not timely filed to perfect the appeal of an April 2008 rating decision.

The Veteran testified at a Board hearing in November 2011; a transcript of those proceedings has been associated with the claims file.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In light of the favorable decision in this case, the RO should take appropriate action to reinstate the appeal of the issue referenced herein.


FINDINGS OF FACT

1.  The Veteran filed a timely notice of disagreement following an April 2008 rating decision, and on September 21, 2009, was provided notice of the statement of the case, and informed that he had 60 days to perfect his appeal.  The RO referenced November 21, 2009 as the 60 day mark, which falls on a weekend, such that Monday, November 23, 2009 is the date by which the substantive appeal must be received.

2.  The Veteran's substantive appeal envelope was not postmarked, such that the postmark rule is applied in computing the date of receipt of the appeal.

3.  The Veteran's substantive appeal was received November 30, 2009, which is altered by counting back five days, excluding Saturdays, Sundays and the Thanksgiving holiday according to the postmark rule, and presumed to have been received November 23, 2009.  

4.  The Veteran's substantive appeal, received November 23, 2009, is within the 60 day time limit of notice of the statement of the case in the matter.


CONCLUSION OF LAW

The appeal as to the April 2008 rating decision was received November 23, 2009 according to the postmark rule, and as such is timely.  38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.305 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The timeliness of a substantive appeal is solely one of statutory and regulatory interpretation.  In such a case, the Veterans Claims Assistance Act of 2000 (VCAA) has no application.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

Timeliness of the Appeal

An appeal to the Board 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 or correspondence containing the necessary information.  See 38 C.F.R. § 20.202.  As a general rule, a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case (SOC) 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 period ends later.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.30, 20.302(b) (2013).  The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302(a).  

In computing a time limit for filing, in the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA.  38 C.F.R. § 20.305(a).  In calculating this 5-day period, Saturdays, Sundays, and legal holidays will be excluded.  Id.  In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included.  Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.  38 C.F.R. § 20.305(b).

If an appeal is not perfected within the time specified by the regulation, the RO's determination becomes final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d) (2013).  The RO is authorized to close an appeal for the failure to submit a timely response to the SOC.  38 C.F.R. § 19.32 (2013).  The determination by the RO that a substantive appeal was not timely filed is an appealable decision.  38 C.F.R. § 19.34 (2013).

In the present matter, an April 2008 rating decision denied the Veteran's claim of entitlement to service connection for a low back condition, with notice to the Veteran mailed April 17, 2008.  Thereafter, the Veteran filed a timely notice of disagreement in February 2009.  The RO prepared a SOC in September 2009, and sent a copy of that readjudication to the Veteran on September 21, 2009.  The notification letter accompanying the SOC informed the Veteran that he needed to file his substantive appeal within 60 days of the date of that notice.  Although the Board calculates the 60 day mark as November 20, 2009, a December 2009 letter from the RO informed the Veteran that the last day to file his appeal was November 21, 2009.  In case the Veteran relied on this date provided as the official date in formulating arguments for his appeal, the Board will consider the November 21, 2009 date as provided by the RO the pertinent date for determining the expiration of the 60 day period.  See generally Percy v. Shinseki, 23 Vet. App. 37 (2009).  The Board observes that this date fell on a Saturday in 2009, and as such the following business day is November 23, 2009, which is the expiration of the appeal period for the referenced April 2008 rating decision.  See 38 C.F.R. § 20.305(b).  

The Veteran's substantive appeal was received, date-stamped, November 30, 2009.  The accompanying envelope was not, however, postmarked.  As such, the postmark rule is for application.  The substantive appeal is presumed to have been received five days prior to November 30, 2009 the date of receipt of the document by VA, excluding Saturdays, Sundays, and holidays.  As applicable to this case, Thanksgiving, November 26, 2009 is a legal holiday.  Accordingly, in calculating the time period of receipt, Sunday, November 29th; Saturday, November 28th; and Thanksgiving, November 26th are excluded.  As such, the Board presumes the substantive appeal was received on November 23, 2009.  See 38 C.F.R. § 20.305(a).

In conclusion, as the Veteran filed his substantive appeal within 60 days from the date that the RO mailed the SOC to him, the substantive appeal is timely.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b); 20.305.


ORDER

A timely substantive appeal was filed with regard to an April 2008 rating decision that denied service connection for a low back condition.  The appeal is granted to this extent.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs