Citation Nr: 1754092 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-07 316A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Center in Milwaukee, Wisconsin THE ISSUES 1. Whether a timely Notice of Disagreement (NOD) was filed regarding an October 2010 decision that administratively denied the Appellant's claims for nonservice-connected pension, service connection for a sinus condition, and service connection for migraine headaches. 2. Entitlement to nonservice-connected pension. 3. Entitlement to service connection for a sinus condition. 4. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and his spouse ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Appellant served on active duty from June 1973 to June 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 administrative decision issued by the Department of Veterans Affairs (VA) Milwaukee Pension Center, located in Milwaukee, Wisconsin. In August 2017, the Appellant and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) mailed an administrative decision to the Appellant on October 26, 2010, denying his claims for entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines. 2. The AOJ received the Appellant's NOD on October 27, 2011, as indicated by the official VA date stamp on the document. 3. There is no postmark of record indicating when the NOD was mailed; when taking into account weekends in calculating the 5-day period between receipt and due date, the Appellant's NOD was received within the applicable time limit. CONCLUSION OF LAW The Appellant submitted a timely NOD with the October 26, 2010, decision denying entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.305 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that an appeal consists of a timely filed NOD and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. To be considered timely, a NOD must be filed within one year from the date that the AOJ mailed the notice of the determination. 38 C.F.R. § 20.302(a). The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. Notably, a NOD postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded. 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. By way of history, in an October 26, 2010, decision, the AOJ administratively denied the Appellant's claims for, entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines, based on his character of discharge. The AOJ received the Veteran's NOD on October 27, 2011, as indicated by the official VA date stamp on the document. As the administrative decision was dated October 26, 2010, the Appellant had one year, or until October 26, 2011, to file his NOD. However, the Board finds that the Appellant's NOD was in fact timely submitted to the AOJ when it was received on October 27, 2011. Because the postmark for the NOD is not of record, it is presumed to be five days prior to the day of receipt of the document by VA, excluding Saturdays, Sundays, and legal holidays. 38 C.F.R. § 20.305. The Veteran's NOD of record does not include a copy of the envelope with a postmark; therefore, taking into account the five day "grace period," excluding Saturday and Sunday between the two dates, the date of the receipt of the NOD is presumed to be October 20, 2011. Accordingly, as the Board must presume that the postmark date of the Appellant's NOD was October 20, 2011, and finds that it was timely. ORDER A timely NOD was filed with respect to the October 26, 2010, decision which denied entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines, and to that extent only, the appeal is granted. REMAND Given that the AOJ did not previously acknowledge a timely NOD with respect to the issues of entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines, the Appellant's claims must be remanded in order to provide him with a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: Furnish the Appellant and his representative with a Statement of the Case regarding his claims for entitlement to nonservice-connected pension, service connection for a sinus disorder, and service connection for migraines. The Appellant must be informed of the requirements to perfect an appeal with respect to these issues. If, and only if, the Appellant perfects an appeal with respect to these issues, the RO must ensure that all indicated development is completed before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs