Citation Nr: 1760880 Decision Date: 12/28/17 Archive Date: 01/02/18 DOCKET NO. 17-47 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a notice of disagreement from an October 2015 rating decision was timely. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1985 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Veteran waived Agency of Original Jurisdiction (AOJ) consideration of evidence subsequently provided. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. An October 2015 rating decision, in pertinent part, granted a 70 percent disability rating for posttraumatic stress disorder (PTSD) and a 10 percent rating for dysphonia. 2. By correspondence dated October 21, 2015, the Veteran was notified that if she did not agree with a October 2015 rating decision that she must complete and return the enclosed VA Form 21-0958, Notice of Disagreement, within one year of the October 21, 2015, correspondence. 3. A VA Form 21-0958 listing dysphonia and expressing disagreement with the rating and effective assigned for PTSD was first received by VA on December 21, 2016. 4. The Veteran is shown to have had severe physical and mental impairments that were an extraordinary circumstance beyond her control over the one year period after October 21, 2015; that her untimely filing was a direct result of that circumstance; and that she acted diligently in filing a defective notice of disagreement within the applicable one year appeal period. CONCLUSION OF LAW Good cause is shown for a time limit extension and a timely notice of disagreement was received from an October 2015 rating decision. 38 C.F.R. §§ 3.109(b), 20.201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION An October 2015 rating decision, in pertinent part, granted a 70 percent disability rating for posttraumatic stress disorder (PTSD) and a 10 percent rating for dysphonia. By correspondence dated October 21, 2015, the Veteran was notified of the October 2015 and advised that if she did not agree she must complete and return the VA Form 21-0958, Notice of Disagreement, enclosed with that correspondence within one year. On October 17, 2016, VA received a VA Form 9 from the Veteran expressing disagreement with the effective date and rating assigned for her PTSD. On October 28, 2016, VA notified the Veteran and her service representative that no further action could be taken until a completed VA Form 21-0958 was received. A VA Form 21-0958 was received by VA on December 21, 2016, listing dysphonia and expressing disagreement with the rating and effective assigned for PTSD. By correspondence dated January 6, 2017, VA notified the Veteran and her service representative that the provided notice of disagreement was not timely. The Veteran appealed this determination. The Veteran contends, in essence, that correspondence (VA Form 9) she provided VA on October 17, 2016, should be accepted as a timely notice of disagreement from an October 2015 rating decision as to her service-connected posttraumatic stress disorder (PTSD). Alternately, she maintains that a VA Form 21-0958, Notice of Disagreement, should be accepted as timely because she lacked the capacity to act and file a VA Form 21-0958 within the one year appeal period. At her personal hearing she asserted that she had been physically unable to file the form because of immune system crashes lasting six to eight weeks at a time. She reported she was only active and functioning two hours per day, at most. She stated she did not realize she was providing the wrong form when she submitted a VA Form 9 in October 2016 and that the service representative who submitted the form for her did not, in essence, properly advise her. She does not dispute having received the October 21, 2015, notice and the enclosed VA Form 21-0958. In support of her claim the Veteran provided a copy of a September 15, 2016, private medical statement which found she was 100 percent disabled due to PTSD. It was noted that she had taken six weeks of leave in approximately June 2014 due to her PTSD, depression, anxiety, and lung disorder that had worsened as a result of stress associated with her VA employment. A November 2017 private medical statement from M.O., M.D., noted the Veteran was previously found to be 100 disabled due to her lung disorder. It was also noted that she lost her VA job in November 2015 due to missed work related to illness. The physician found that due to her combined, severe restrictive and obstructive ventilatory impairment; no known treatment for her type of lung disorder due to exposures; her compromised immune system which put her at risk for common colds, pneumonia, and respiratory arrest; and her allergic reactions to common cleaners she was 100 percent disabled. She was noted to be terminally ill with a poor prognosis. Effective from March 24, 2015, VA regulations provide that notice of disagreement (NOD) must be submitted via a specific form provided by the VA (VA Form 21-0958). 38 C.F.R. § 20.201 (2017); 79 Fed. Reg. 57660 -57698 (Sept. 25, 2014). The filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a Notice of Disagreement, as provided in § 20.302(a). Returning the incorrect VA form, including a form designed to appeal a different benefit does not extend, toll, or otherwise delay the time limit for filing the correct form. There is likewise no extension of the filing date in instances where an appellant fails to submit the correct form and VA advises the appellant of the same. However, VA regulations generally provide that the time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. 38 C.F.R. § 3.109(b) (2017). VA case law provides that the period for filing a notice of appeal (NOA) with the United States Court of Appeals for Veterans Claims (hereinafter "CAVC") is subject to equitable tolling under circumstances where the NOA is filed at the wrong location (e.g., at the RO or the Board) within the time period prescribed by law, and is thereafter forwarded to the appropriate location (i.e., CAVC) after expiration of that period. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam) (citing Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004), and Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002)). In McPhail v. Nicholson, 19 Vet. App. 30 (2005) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 112 L. Ed. 2d 435, 111 S. Ct. 453 (1990)) it was noted that equitable tolling is allowed where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period. The U.S. Supreme Court has also noted that 38 U.S.C. § 7266, which imposes a 120-day deadline on the filing of an NOA with the CAVC, was not "jurisdictional" and, as such, did not foreclose consideration of equitable tolling. The Court held that the rule pertaining to the 120-day deadline, although cast in mandatory language, did not go to subject-matter or personal matter jurisdiction. Rather, it was in the nature of a "claims-processing rule," which sought to promote the orderly progress of litigation by requiring parties to take certain procedural steps at specified times. See Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 179 L. Ed. 2d 159 (2011). Equitable tolling is justified in extraordinary circumstances. The following requirements must be met: (1) the extraordinary circumstance must be beyond the claimant's control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant 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. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). A review of the record shows that the Veteran was adequately notified that if she did not agree with a October 2015 rating decision that she must complete and return the enclosed VA Form 21-0958, Notice of Disagreement, within one year of the October 21, 2015, correspondence. The Veteran does not argue the contrary. It is also indisputable that the Veteran's VA Form 21-0958, Notice of Disagreement was received on December 21, 2016., which is beyond the one year filing period. However, the Board finds that good cause is shown for an extension of the time limit and that her VA Form 21-0958 received by VA on December 21, 2016, was timely. The Veteran is shown to have had severe physical and mental impairments that were an extraordinary circumstance beyond her control over the one year period after October 21, 2015; that her untimely filing was a direct result of that circumstance; and that she acted diligently in filing a defective notice of disagreement within the applicable one year appeal period. Therefore, the Board finds the appeal must be granted. ORDER A notice of disagreement from an October 2015 rating decision was timely; the appeal is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs