Citation Nr: 1802339 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-14 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether a timely substantive appeal was filed with respect to an April 2011 rating decision that granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial evaluation of 30 percent effective from September 2, 2010. ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served in the Philippine Scouts from May 1946 to May 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from September 2, 2010. In a September 2013 rating decision, the RO increased the evaluation assigned for PTSD to 100 percent effective from May 31, 2012. Thereafter, in an April 2016 rating decision, the RO determined that there was clear and unmistakable error (CUE) in the September 2013 rating decision and assigned an effective date of March 30, 2012, for the 100 percent evaluation. The Veteran has been adjudicated as not competent to handle disbursement of payments of VA compensation benefits, and his daughter has been appointed as his fiduciary with respect to matters before VA. See 38 C.F.R. § 20.301 (2017). This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. 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. In an April 2011 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from September 2, 2010. 2. In March 2012, the Veteran submitted a notice of disagreement with the initial evaluation and effective date assigned. The RO issued a statement of the case on September 26, 2013. A substantive appeal was not filed as of November 26, 2013. 3. The Veteran and the appellant did not request an extension of the time limit for filing a substantive appeal, the RO's actions did not operate as a waiver of the time requirement for filing a substantive appeal, and the doctrine of equitable tolling does not apply. CONCLUSION OF LAW The requirements are not met for a timely substantive appeal with respect to the April 2011 rating decision that granted service connection for PTSD and assigned a 30 percent evaluation effective from September 2, 2010. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 19.32, 19.33, 19.34, 20.200, 20.202, 20.302, 20.303, 20.305, 20.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the decision below, the Board has determined that the Veteran did not submit a timely substantive appeal with regard to April 2011 rating decision. As such, the Board does not have appellate jurisdiction to consider the merits of the claim. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101. Thus, VA is not required to take any further action to assist the claimant. 38 U.S.C. § 5103A(a). The Veteran and his appointed fiduciary were properly notified of the jurisdictional problem, and they were afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. Law and Analysis Under the provisions of 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case (SOC) is furnished to the claimant. 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. A substantive appeal must be filed within 60 days from the date that the Agency of Original Jurisdiction (AOJ) mails the 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. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and 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. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). An NOD and/or a substantive appeal may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record or accompanies such NOD or substantive appeal. 38 C.F.R. § 20.301(a). If an appeal is not filed by a person listed in 38 C.F.R. § 20.301(a) and the claimant is rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, an NOD and a substantive appeal may be filed by a fiduciary appointed to manage the Veteran's affairs by VA or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. 38 C.F.R. § 20.301(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. When the Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. 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. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305(a). 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). The AOJ may close the case for failure to respond after receipt of the SOC, but questions as to timeliness or adequacy of response shall be determined by the Board. 38 U.S.C. § 7105(d)(3). The Board may address in the first instance whether a substantive appeal was adequate and timely at any stage in a proceeding before it, regardless of whether the RO addressed this issue. 38 C.F.R. § 20.101(d). In this case, in an April 2011 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from September 2, 2010. The Veteran was notified of that decision in a letter dated on April 4, 2011. In March 2011, the Veteran filed a timely notice of disagreement with the initial evaluation and effective date assigned. Thereafter, the RO issued an SOC on September 26, 2013. The RO also concurrently issued a rating decision increasing the evaluation assigned for the Veteran's PTSD to 30 percent effective from May 31, 2012. In the notice letter attached to the September 2013 rating decision, the RO noted that the decision may provide the full benefits sought by the Veteran with respect to his claim for an increased evaluation for PTSD. The RO requested that the Veteran submit an appeal response form within 30 days of the date of the letter to indicate whether he was satisfied with the decision. It was specifically noted that the RO would assume that he was not satisfied with the decision and would continue the appeal process if no response was received. The notification letter attached to the September 2013 SOC included notice that the substantive appeal (VA Form 9) must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the rating decision. The letter also stated that, if the substantive appeal was not filed within the specified period, the case would be closed. It was further explained that any request for an extension of time to file should be made prior to the expiration of the time limit for filing the appeal. In this case, the September 2013 SOC was issued after the one-year appeal period following the date of notification of the April 2011 rating decision. As such, the Veteran needed to file his substantive appeal within 60 days from the date the AOJ mailed the SOC. Therefore, the date for timely filing of the Veteran's substantive appeal was November 26, 2013. As noted above, the Veteran has been rated as incompetent by VA, and the appellant was appointed as his fiduciary in April 2013. The appellant submitted a substantive appeal on behalf of the Veteran that was signed on January 3, 2014, but later received by the RO on January 7, 2014. With respect to acceptance of the postmark date under 38 C.F.R. § 20.305(a), neither the envelope nor the mailing label potentially bearing a postmark date are of record. As such, the postmark date of the substantive appeal will be presumed to be five days (excluding Saturdays, Sundays and legal holidays) prior to the date of receipt of the document by VA, which would have been December 30, 2013. Thus, the Veteran's substantive appeal was not received, postmarked, or presumptively postmarked within 60 days from the date that the RO mailed the SOC. The Board acknowledges that the appellant and the Veteran have asserted that he did not receive the September 2013 SOC until a few days before the deadline for submitting a timely substantive appeal due to delays caused by the Republic of the Philippines postal service. However, there is no evidence showing or suggesting that the RO did not properly fulfill its duty in mailing notice of the September 2013 SOC to the Veteran. The record reflects that the letters and determinations were sent to the Veteran and the appellant at their last known address of record, and none of them were returned as undeliverable. Moreover, the appellant's allegation that there were issues with the mailing operations in the Republic of the Philippines is not sufficient alone to rebut the presumption of regularity in RO operations. See generally, Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1991), quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (noting that there is a presumption of regularity in the law that supports "'the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'"). Additionally, the Board has considered whether the Veteran filed a timely request for an extension of the time limit to file a substantive appeal. However, the Board notes that, prior to the expiration of the period for filing a timely substantive appeal, no document was filed by the Veteran or the appellant that can be construed as a timely request for such an extension. The Board also notes that the RO and Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, there is no evidence in this case that the RO continued to treat the Veteran's claim as an active appeal. Rather, the RO notified the Veteran and his fiduciary in a March 2015 letter that his substantive appeal was not timely and that the RO could not take any action on the appeal because the right to appeal expired. In addition, the RO did not certify the issues as being on appeal. Thus, the RO did not waive the requirement of a timely filed substantive appeal. The Board has also considered the doctrine of equitable tolling. The United States Court of Appeals for Veterans Claims (Court) has held that deadline for filing the Substantive Appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Generally, equitable tolling applies only where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the RO or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). To obtain the benefit of equitable tolling on the basis of mental illness, a veteran must show that the failure to file was the direct result of a mental illness that rendered him or her incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (citations omitted). A physical illness or condition that impairs cognitive function may also justify equitable tolling. Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005). In addition, there is a three-part test to determine whether "extraordinary circumstances" in particular justify equitable tolling: (1) the extraordinary circumstance must be beyond the veteran's control, (2) the veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period. See McCreary v. Nicholson, 19 Vet. App. 324 (2005); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). The relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. Checo, 748 F.3d at 1379-80. The appellant and the Veteran have asserted that he did not receive the September 2013 SOC until a few days prior to the deadline for submitting a timely substantive appeal due to delays caused by the Philippine postal service. See, e.g., March 2016 and May 2016 substantive appeals. In support of the Veteran's claim, the appellant also submitted a May 2013 article pertaining to the inefficiency of the Philippine postal service. However, the appellant and the Veteran have failed to demonstrate that any delay caused by the Philippine postal service rises to the level of an extraordinary circumstance to justify equitable tolling. Moreover, the Veteran has not demonstrated that he exercised due diligence in preserving his legal rights. Indeed, the Veteran specifically stated that he received the September 2013 SOC prior to the deadline for submission of a substantive appeal. See, e.g., March 2016 substantive appeal. As discussed above, the Veteran and his fiduciary were advised of the requirements for filing a timely substantive appeal or requesting an extension, and there is no indication that they were prevented from doing so. Rather, despite stating that they received the SOC a few days prior to the November 26, 2013 deadline, no further action was taken by them until January 2014. The appellant and the Veteran have also asserted that he was unable to file a timely substantive appeal due to his service-connected PTSD and physical health problems. In this regard, the Veteran reported that he was hospitalized from January 2013 to February 2013 and indicated that he continued to experience ongoing physical health problems thereafter. See, e.g., March 2016 substantive appeal. The Veteran also reported that he was hospitalized in November 2014 and June 2015 for pneumonia and other physical problems. In a May 2012 VA examination, the examiner stated that the Veteran was a recluse and socially isolated, but he had very occasional social interaction with family members. The examiner stated that the Veteran's heart condition resulted in fatigability and unsustainability of tasks. He also experienced pain from orthopedic conditions that affected his physical mobility and hearing loss that impaired his ability to respond properly to stimuli. The examiner indicated that the Veteran was able to perform all self-care functions. The examiner also noted that the Veteran's chronic PTSD symptoms affected his social relationships and intrapersonal adjustment to crisis situations, which resulted in problems of motivation and impacted his ability to secure and maintain gainful employment. In addition, the Veteran had mild to moderate cognitive decline due to aging that impacted his ability to handle his financial needs independently. It was noted that the Veteran's physical conditions and medical ailments further aggravated his problems. In a May 2012 VA psychiatric examination, the examiner noted that the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, impairment of short and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner opined that the Veteran did not have the capacity to prudently handle payments, understand the amount of his monthly bills, or personally handle money and pay bills. The examiner further stated that the Veteran was not capable of managing his financial affairs because he was oblivious to planning or saving for his future needs. A March 2013 private medical record noted that the Veteran was hospitalized from January 31, 2013, to February 2, 2013. A March 2016 private medical record shows that the Veteran was hospitalized for acquired pneumonia from June 1, 2015, to June 3, 2015. He was also hospitalized for muscle fatigue from November 21, 2015, to November 22, 2015. The record reflects that the Veteran has been assigned a 100 percent evaluation for his service-connected PTSD effective from March 30, 2012. In addition, in a February 2013 rating decision, the RO determined that the Veteran was incompetent for VA purposes. Thus, the evidence shows that the Veteran suffered from a severe mental illness during the relevant time period. Nevertheless, the Veteran must demonstrate that the failure to file a timely substantive appeal was a direct result of his mental disorder. The mere presence of mental illness, no matter how severe, is not sufficient for equitable tolling of the filing period. See McCreary v. Nicholson, 19 Vet. App. 324, 331 (2005). Here, the evidence of record does not show that Veteran was unable to rationally or factually understand the need to file a timely substantive appeal. In addition, there is no indication that the Veteran's mental incompetence was so severe that he was not able to cooperate or monitor his fiduciary that was assisting him with his claim. Indeed, the Veteran specifically asserted that he was able to pursue his claim with the assistance of his daughter who was subsequently appointed as his fiduciary. See, e.g., March 2013 statement in support of claim. Notably, she was serving as his fiduciary during the period in question. Therefore, the appellant and the Veteran have not demonstrated a causal link between his mental illness and the untimely filing. With regard to the Veteran's physical health, the Board notes that the Veteran's reported dates of hospitalization do not fall within the relevant time period. Moreover, other than vague assertions that the Veteran had ongoing physical problems in 2013, the Veteran and the appellant have offered no evidence demonstrating that his physical condition prevented him from filing a timely substantive appeal or a request for an extension. For these reasons, the Board finds that the alleged delay caused by the mailing system in the Republic of the Philippines and the Veteran's physical or mental disorders, either individually or together, do not satisfy the criteria for equitable tolling. A substantive appeal was not received within 60 days from the September 2013 SOC, or within one year from notification of the April 2011 rating decision. Accordingly, the appeal is denied. ORDER As the Veteran did not file a timely substantive appeal regarding the April 2011 rating decision that granted service connection for PTSD and assigned a 30 percent evaluation effective from September 2, 2010, the appeal is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs