Citation Nr: 19132000 Decision Date: 04/25/19 Archive Date: 04/24/19 DOCKET NO. 17-14 868 DATE: April 25, 2019 ORDER The appeal of whether a substantive appeal was timely filed in response to a February 2015 statement of the case (SOC) is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal within 60 days of the date on which the February 6, 2015 SOC was sent to the Veteran. 2. The Veteran did not submit a request for an extension of the time limit for filing a substantive appeal prior to the expiration of the time limit for filing the substantive appeal. CONCLUSION OF LAW A timely substantive appeal was not filed. 38 U.S.C. § 7104, 7105; 38 C.F.R. §§ 20.200, 20.302(b), 20.305, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center. The issue presented to the Board is timeliness of appeal. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Whether a substantive appeal was timely filed in response to a February 2015 SOC. The Agency of Original Jurisdiction (AOJ) sent the Veteran an SOC on February 6, 2015 regarding an overpayment of Tuition Assistance Top Up benefits. The AOJ received a substantive appeal from the Veteran on September 7, 2016. As the Veteran did not perfect a timely appeal, the issue of validity of the debt due to Tuition Assistance Top Up benefit overpayments is not currently before the Board. The procedural background of the issue on appeal emanates from February 2014 determination by a VA RO Education Center regarding the Veteran’s entitlement to payments under the Tuition Assistance Top Up program. In January 2012, the Veteran requested an audit of his Tuition Assistance Top Up payments and resulting overpayment. In March 2012, the Veteran received a letter regarding his entitlement under the Tuition Assistance Top Up, Montgomery GI Bill, and Post-9/11 GI Bill benefit programs. In March 2013, the Veteran submitted a notice of disagreement. A second determination letter was sent in February 2014, which informed the Veteran that if he wished to continue to appeal, he should submit a statement in writing. In October 2014, VA received the Veteran’s statements disagreeing with the February 2014 determination, including a prematurely submitted and signed VA Form 9 dated September 26, 2014, before an SOC was issued. The RO construed the prematurely submitted VA Form 9 as a notice of disagreement (NOD) and subsequently issued an SOC in February 2015. The February 2015 SOC advised the Veteran that if he wished to appeal to the Board of Veterans Appeals, he should return the enclosed VA Form 9 within 60 days of the date the SOC was mailed, i.e. April 6, 2015. The Veteran then filed a VA Form 9 that was received by VA on September 7, 2016. In correspondence dated October 2016, the RO informed the Veteran that his September 2016 Form 9 was untimely so as to constitute a substantive appeal of the adverse February 2014 determination, and that the prior decision on his claim was final. In January 2017, the Veteran submitted a NOD with the October 2016 correspondence determination. A February 2017 SOC confirmed the RO’s earlier finding of lack of timeliness, and the Veteran filed a VA Form 9 that was received on March 16, 2017. The Veteran contends that his September 2016 VA Form 9 was identical to the September 2014 VA Form 9 and as such he should not have to resubmit a form VA already has. He also argues that he submitted his VA Form 9 in September 2014 and that the February 2015 SOC never notified him that he had to resubmit his previously submitted September 2014 VA Form 9. The Veteran further contends that he was repeatedly advised by VA employees that his appeal was open and would not be closed for one and half year past April 2015. An appeal consists of a NOD filed within one year of the notice of the decision being appealed, and after an SOC has been furnished, a timely-filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A substantive appeal is timely if received within 60 days of the date of the SOC, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Timely filing of the substantive appeal within 60 days of the date of the SOC perfects the appeal. If an appeal of a decision is not perfected, the decision becomes final. 38 C.F.R. §§ 20.200, 20.1103. A substantive appeal postmarked prior to expiration of the proscribed period will be accepted as having been timely filed. 38 U.S.C. § 7105(b)(1); 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. 38 C.F.R. § 20.305(b). The relevant SOC was issued on February 6, 2015. Because this is more than one year after the notification of the decision being appealed, the Veteran had 60 days from February 6, 2015 to submit his appeal, i.e. April 6, 2015. In this case, the Veteran’s Form 9 was received on September 7, 2016, which is well beyond the required 60-day response period. The Veteran did not request an extension of time, or submit any evidence or correspondence within the 60-day period that could be interpreted as a request to continue an appeal of the February 2014 determination. Therefore, Veteran’s appeal is untimely, and the February 2014 determination became final. 38 C.F.R. §§ 20.200, 20.1103. Accordingly, the remaining issue is whether the Veteran’s October 2014 VA Form 9 (dated September 26, 2014), which was submitted prior to the issuance of a SOC, should be construed as a substantive appeal. First, the Board notes that generally a claimant files a substantive appeal after VA issues an SOC. 38 U.S.C. § 7105(a), (d)(1), (d)(3). In Archbold v. Brown, 9 Vet. App. 124 (1996), the Court accepted a statement submitted 10 months prior to the RO's issuance of an SOC, as a substantive appeal. Thus, the Board acknowledges that, in some circumstances, a statement submitted prior to the issuance of an SOC may be accepted as a substantive appeal. However, the Court has not mandated that every prematurely received Form 9 be accepted as a substantive appeal. As noted in Rodriguez v. Shinseki, No. 09-3655, 2011 WL 1485471 (Vet. App. Apr. 20, 2011), “Archbold does not mandate a conclusion that every prematurely filed [VA Form 9] or its equivalent be accepted as a substantive appeal. To hold otherwise would pervert the statutory scheme, which clearly contemplates a multi-step process for bringing an appeal the board.” In Gibson v. Peake, 22 Vet. App. 11 (2007), similar to the present case, the RO received correspondence from the appellant that included a VA Form 9 upon which he had checked boxes indicating that he wanted to appeal all of the issues listed on the SOC that VA had sent him; however, at that time, VA had not yet prepared an SOC because his claim was not in appellate status. In Gibson, as here, the appellant had also attached an explanation sheet of why VA had decided his case incorrectly. (In the present claim, the Veteran asserts that his TATU and Chapter 33 benefits were improperly calculated.) In Gibson, the court found that “[a]lthough the appellant did use a substantive appeal form, the attached letter and forms indicates that the VA Form 9 did not stand alone. Similarly, the tenor of the appellant’s arguments on the attached sheets is consistent with the regulatory description of correspondence that constitutes a NOD.... Thus, it was reasonable and appropriate for the RO to construe the appellant’s submission collectively as a NOD, which the RO unquestionably did.” The Court also noted that when the RO sent the appellant the SOC, the cover letter stated that the SOC was in response to the recent NOD of a VA decision, and the SOC itself stated that VA received a NOD. In the present claim, as in Gibson, the Veteran simultaneously submitted the VA Form 9 with an attached document dated the same date. Also, as in Gibson, none of the documents generated by the RO contained information indicating to the appellant that the RO had received or accepted a substantive appeal from him. Also, here, as in Gibson, the cover letter stated that the February 2015 SOC was in response to the recent NOD of a VA decision, and the SOC itself stated that VA received a NOD. The Board finds that the VA Form 9 with an attached document received by VA in October 2014 was a NOD and was not a substantive appeal. The VA Form 9 and attached letter and documents argue that the VA misinformed him about how Chapter 33 and Chapter 31 benefits would be charged along with his Tuition Assistant Top Up payments. Although the submission was on multiple pieces of paper, the Board concludes that it cannot be reasonably construed as to be two separate documents, independently sufficient in their own right to constitute both a NOD and a substantive appeal. The documents indicate that the Veteran believed that his benefits were charged incorrectly and that he was entitled to three more months of benefits. Even if the October 2014 correspondence met the regulatory content requirements of a substantive appeal with regard to specificity, the Board finds that the circumstances of the filing indicate that the Veteran intended to file a NOD. The Board notes that not only was the October 2014 correspondence filed prior to the February 2015 SOC, but also that there was no document filed prior to the SOC which could have been construed as a NOD of the February 2014 determination. In addition, the documents filed in October 2014 were filed simultaneously. As the Court has noted, the VA regulations are clear that the appeals process is a multi-step process. The Board finds that to allow the Veteran to simultaneously file a NOD with a substantive appeal, without the issuance of an SOC, and without any other correspondence from the Veteran which could be construed as a NOD or substantive appeal, would be to pervert the multi-step process. See Rodriguez v. Shinseki, supra. In looking at the circumstances of the Veteran’s correspondence, the Board finds it significant that it was submitted after the issuance of the February 2014 decision, with no intervening correspondence from VA. Thus, the timing of the Veteran’s correspondence reflects that it was intended to be a NOD. In this regard, the Board notes that, prior to March 24, 2015, a NOD need not be filed on any particular form and may even be filed on a substantive appeal form, as in this case, so long as it meets the content requirements for a NOD. 38 C.F.R. § 20.201; see Archbold v. Brown, 9 Vet. App. 124, 131 (1996) (citing Malgapo v. Derwinski, 1 Vet. App. 397, 398-99 (1991) (holding, in portion not overruled by Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), that a substantive appeal form can function as NOD as to claim if there is no other NOD as to that claim)); Zevalkink v. Brown, 6 Vet.App. 483, 489 (1994) (en banc) (same). In the present claim, the RO accepted the October 2014 VA Form 9 with the attachment as a NOD. Furthermore, the Veteran was notified in the February 2015 SOC of how to complete his appeal, and that his NOD had merely been the first step. He was also notified that if VA did not hear from him again, either in 60 days from the date of the February 2015 letter or within one year of the February 2014 decision, his claim would be closed. The Board has looked at both the content and the circumstances surrounding the correspondence received by VA in in October 2014 and finds that, taken together, it constitutes a NOD and not a substantive appeal. While VA is granted the authority to waive the issue of timeliness in the filing of a substantive appeal, such a waiver is not warranted in the present fact situation. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding that, because an issue was treated as if it were timely perfected for more than five years before being raised by the Board in the first instance, VA had waived any issue concerning timely filing of the substantive appeal). As distinguished from the situation in Percy, at no time has VA failed to recognize the absence of a timely substantive appeal or proceeded to address the issue on the merits as if a timely substantive appeal had been filed. Instead, the RO notified the Veteran in October 2016 that the Form 9 received in September 2016 was not timely received and informed him of his appeal rights. The Board further finds that the matter does not warrant equitable tolling. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). “As a general matter, equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Checo v. Shinseki, 748 F.3d 1373, 1376 (2014) (footnote 1, quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). The Veteran has not alleged that any extraordinary circumstances beyond his control prevented him from filing his appeal on time. The Board acknowledges the Veteran’s contention that he was misinformed by VA employees that his appeal was still open and would not close until a year and half later than the April 2015 deadline. In this regard, persons dealing with the government are generally charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance. See Jaquay v. West, 11 Vet. App. 67, 74 (1998). Moreover, any VA failure to furnish a claimant or potential claimant any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim for educational assistance will not extend the time periods allowed for these actions. 38 C.F.R. § 21.1033(a). VA cannot be bound to grant education benefits due to a VA employee misinforming the Veteran regarding eligibility. Eicher v. Shulkin, 29 Vet. App. 57 (2017). The fact that the Veteran may have been provided inaccurate information by VA employees and that he determinately relied upon this information does not allow the Board to provide equitable relief. The Board is sympathetic to the Veteran’s contentions and understands his desire to access VA benefits to assist with his educational costs. However, as this case turns on the timeliness of the VA Form 9, the Board is bound to follow the controlling regulations. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Therefore, the appeal of whether a substantive appeal was timely filed in response to a February 2015 SOC is denied. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In such cases, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel