Citation Nr: 18142489 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 808 DATE: October 17, 2018 ORDER The Veteran’s June 14, 2013 notice of disagreement to initiate his appeal as to all issues decided in a June 7, 2012 rating decision, received by the Department of Veterans Affairs (VA) on June 21, 2013, was timely received. FINDING OF FACT VA received the Veteran’s notice of disagreement on June 21, 2013, which is presumed to have been post-marked on June 14, 2013, within the one-year period permitted to submit a notice of disagreement. CONCLUSION OF LAW The Veteran timely filed a notice of disagreement to appeal all issues decided in a June 7, 2012 rating decision. 38 C.F.R. § 20.305 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1967 to April 1972. The Timeliness of the Veteran’s Notice of Disagreement Received bv the VA on June 21, 2013 In November 2011, and after filing an October 2011 notice of intent to file a claim for disability benefits, the Veteran filed a claim for disability compensation benefits administered by VA. The Veteran sought service connection for the following disorders: post-traumatic stress disorder (PTSD), tinnitus, bilateral sensorineural hearing loss, and a scar on the right knee residual to a gunshot wound. The Veteran also sought a higher evaluation for the following service-connected disabilities: spondylosis at L5–S1, with grade spondylolisthesis and vacuum disc phenomena at L5–S1 (“low back disability”), and chondromalacia of the right patella. Ae June 7, 2012 rating decision granted service connection for PTSD with a 50 percent evaluation, tinnitus with a 10 percent evaluation, bilateral sensorineural hearing loss with a non-compensable evaluation, and a right knee scar residual to a gun-shot wound with a non-compensable evaluation. The June 7, 2012 rating decision denied the assignment of compensable evaluations for the Veteran’s service-connected low back disability and chondromalacia of the right patella. A letter dated June 14, 2012 notified the Veteran of the June 7, 2012 rating decision. On June 21, 2013, VA received correspondence dated June 14, 2013 from the Veteran stating that he disagreed with the June 7, 2012 rating decision. The correspondence also noted that the Veteran disagreed with VA’s decisions as to all issues decided in the June 7, 2012 rating decision. In a September 13, 2013 letter, VA informed the Veteran that it could not accept the June 14, 2013 correspondence as a timely notice of disagreement with the June 7, 2012 rating decision. A September 20, 2013 letter from the Veteran’s representative disagreed with VA’s determination, and a June 30, 2016 VA Form 9, Substantive Appeal, perfected the Veteran’s appeal of the issue of the timeliness of the Veteran’s June 2012 correspondence. The question for the Board is whether the correspondence received on June 21, 2013 constitutes a timely notice of disagreement with the June 7, 2012 rating decision. The Board concludes that it does. Applicable regulations provide that 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. 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). The postmark for the correspondence received by VA on June 21, 2013 is not of record. Thus, it is presumed to have been mailed 5 days prior to the June 21, 2013 receipt date. See id. June 21, 2013 was a Friday. Starting the count on Thursday, June 20, 2013, the five-day period terminates on Sunday, June 16, 2013. Because the period terminates on a Sunday, the five-day period is deemed to have expired on Friday, June 14, 2013, the next succeeding workday. See id. § 20.305(b). Accordingly, the Veteran’s correspondence is presumed to have been post-marked June 14, 2013, one year to the day after the June 14, 2012 notification letter regarding the June 7, 2012 rating decision and prior to the expiration of the one-year period to file a notice of disagreement. The Veteran’s correspondence constitutes a timely notice of disagreement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel