Citation Nr: 1805871	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  17-29 956	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York


THE ISSUE

Whether or not the appellant filed a timely VA Form 9 Appeal to the Board of Veterans' Appeals (Board).


REPRESENTATION

Appellant represented by:	Kenneth S. Beskin, Attorney-at-Law


ATTORNEY FOR THE BOARD

L. Durham, Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to December 1955.  The appellant is his surviving spouse.

This appeal to the Board arose from a December 2016 determination of the VA RO in Philadelphia, Pennsylvania. 

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.  On October 28, 2014, the RO notified the appellant of its decision to deny her request for entitlement to death pension benefits. 

2.  Following a receipt of a notice of disagreement (NOD), the RO issued a statement of the case (SOC) on the issue of entitlement to survivor's pension to the appellant on May 30, 2016. 

3.  On August 8, 2016, the appellant filed a substantive appeal.  This substantive appeal was not received within 60 days from the date of the SOC or within one year of the notification of the decision denying the claim for entitlement to death pension benefits. 



CONCLUSION OF LAW

The appellant did not timely perfect an appeal of the decision denying entitlement to death pension benefits; thus, the Board has no jurisdiction to consider that issue and it is dismissed.  38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.202, 20.302 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Neither the appellant nor her representative has raised any issues with the duty to notify or the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.

The Board's authority to review an adverse AOJ decision is initiated upon a claimant's submission of a NOD and completed by a substantive appeal after a SOC has been furnished.  38 U.S.C. §§ 7105 (a); 38 C.F.R. § 20.200.  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. 

A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC 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).  In determining its jurisdiction, the Board must be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). 

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 SOC (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). 

On October 28, 2014, the AOJ issued a notification letter denying the appellant's claim for entitlement to death pension benefits.  In September 2015, the appellant submitted a timely NOD as to this issue.  Thereafter, on May 30, 2016, the AOJ issued a SOC, and there is no indication that such was returned as undeliverable.  A timely substantive appeal, however, was not received from the appellant.  A VA Form 9 was received by VA on August 8, 2016, according to the scanning date from the VA Claims Intake Center, but receipt of this document was found by the AOJ to be untimely. 


In December 2016, the AOJ notified the appellant of the potential jurisdictional defect and what she should do if she disagreed with this decision.  In response, she initiated and perfected a timely appeal of the issue of timeliness of her substantive appeal. 

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 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. 

VA, however, has not waived this requirement in this case and declines to do so at this time. Here, unlike in Percy, VA has not by its actions implicitly waived timely receipt of a substantive appeal from the appellant addressing this issue.  Furthermore, the AOJ specifically informed her they were closing out her appeal as to such issue.  As such, the issue of timeliness of the substantive appeal has not been waived at any time, either explicitly or implicitly. 

The Board acknowledges the representative's arguments that the August 8, 2016, substantive appeal should be considered timely.  Specifically, the representative submitted a statement with the appellant's August 2016 VA Form 9 arguing that the appellant's substantive appeal should be considered timely for the following reasons: (1) 5 days for mailing should be allowed to the extent that it is within 60 days from when the claimant actually received the SOC; (2) special considerations should be given to the fact that the appellant is elderly and suffers from multiple health problems; and (3) the filing period should be extended because the appellant was ready to file her appeal but was advised by her former representative, Disabled American Veterans, to seek counsel before filing, causing the appellant to switch representatives and submit her VA Form 9 at a later date. 

With regard to representative's argument that 5 days for mailing should be considered to the extent that it is within 60 days from when the claimant actually received the SOC, as noted above, regulations specifically provide that a substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC 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).  This regulation does not provide that the 60 days should begin when the appellant actually receives the SOC.  

Moreover, the Board notes that a response postmarked prior to the 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 5-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 (a), (b).

In this case, the postmark is of record on the outside of the mailing envelope and is dated August 3, 2016.  Even considering this postmark date, the Board notes that August 3, 2016, is still not within the applicable 60-day time limit for submitting a substantive appeal.

Regarding the representatives' remaining arguments, while the Board is sympathetic to the appellant's health problems and recognizes that she is of advanced age, neither she or her representative has presented argument as to how her health problems or age prevented her from filing a timely substantive appeal.  For example, she did not argue that she was hospitalized or too sick to mail the document.  As such, the Board does not find that the evidence supports an argument that her advanced age or disabilities affected her ability to file a timely appeal.  Additionally, the representative suggested in the same document that she filed her VA Form 9 late because she switched her representatives.  While the Board recognizes that the appellant signed her substantive appeal on July 19, 2016, and that she may have delayed submitting her VA Form 9 to seek different counsel, the fact remains that she did not submit her substantive appeal to VA prior to the expiration of the 60-day filing period.  Her decision to switch representatives does not nullify the requirement to submit a timely substantive appeal.

Based on the foregoing, the appellant did not file a timely substantive appeal as to the issue of entitlement to death pension benefits.  Accordingly, the Board does not have jurisdiction to review the instant appeal as to this issue and it is dismissed.


ORDER

A substantive appeal was not timely filed to an October 2014 RO denial of entitlement to death pension benefits, and the appeal as to that issue is dismissed.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs