Citation Nr: 1751184 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-21 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty with the Coast Guard from June 1974 to June 1994. He died in February 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decisions of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. When the case was previously before the Board in August 2015 the issue currently before the Board was remanded for issuance of a statement of the case. FINDINGS OF FACT 1. The issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009 was remanded by the Board in August 2015 for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). 2. A statement of the case on the issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009 was issued on March 29, 2017. 3. The appellant did not file a timely substantive appeal as to the issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009. CONCLUSION OF LAW The issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009 is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 38 C.F.R. §§ 20.200, 20.202, 20.302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009 was remanded by the Board in August 2015 for the issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The remand specifically instructed the Agency of Original Jurisdiction that if a timely substantive appeal is not filed, the claim should not be certified to the Board. The Board's authority to review an adverse Agency of Original Jurisdiction (AOJ) decision is initiated upon a claimant's submission of a notice of disagreement and completed by a substantive appeal after a statement of the case has been furnished. 38 U.S.C. §§ 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). As relevant to the instant case, a substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. 38 C.F.R. § 20.202. In this regard, a substantive appeal should set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination being appealed. The Board will construe such arguments in a liberal matter for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the claimant 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 C.F.R. § 20.302 (b)(1). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101 (d). The AOJ may close the case for failure to respond after receipt of the statement of the case (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d). In this case, the AOJ issued the statement of the case (as instructed by the August 2015 remand) on March 29, 2017. The appellant had until May 29, 2017 (60 days from the date of the statement of the case) to file a substantive appeal with the issue addressed in the March 29, 2017 statement of the case; however, the Board finds that the appellant did not submit any documents during the relevant time period that would constitute a substantive appeal. While the appellant's representative submitted an Informal Hearing Presentation in August 2017, and such Informal Hearing Presentation can be construed as a substantive appeal, it is not timely. The Board recognizes that the United States Court of Appeals for Veterans Claims has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). As a timely filed substantive appeal is not a jurisdictional bar to Board review, the Board cannot raise a timeliness objection in a particular case if the appellant filed an untimely substantive appeal and the RO had, nonetheless, treated the Veteran's claim as timely appealed for more than five years, and certified the issue to the Board, and after the Board identified the issue at a hearing and took testimony on the issue. See Percy, 23 Vet. App. at 45. However, VA has not waived this requirement in this case and declines to do so at this time. Here, the AOJ did not return the case back to the Board upon receipt of the August 2017 Informal Hearing Presentation. Instead, a May 2017 letter notes that the case was returned to the Board as per the March 29, 2017 statement of the case. Furthermore, a July 2017 letter indicates that the Board had received the appeal. Additionally, a long period of time has not passed during which the RO has treated the issue as timely appealed. Finally, the appellant has not acknowledged the issue as being timely appealed, and testimony has not been taken on the issue. See Percy, 23 Vet. App. at 45. In fact, in the Informal Hearing Presentation, the appellant's representative acknowledges that the appellant did not respond to the statement of the case. As such, the Board finds that the issue of timeliness of the substantive appeal has not been waived at any time, either explicitly or implicitly. Based on the foregoing, the Board finds that the appellant did not file a timely substantive appeal as to the issue of entitlement to an increased rate of nonservice-connected death pension based on unreimbursed medical expenses for calendar year 2009. Accordingly, the Board does not have jurisdiction to review the instant appeal and it is dismissed. ORDER The appeal is dismissed. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs