Citation Nr: 20003579 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 17-47 082 DATE: January 15, 2020 ORDER A timely substantive appeal was not received with an August 2013 rating decision which denied service connection for the cause of the death. FINDING OF FACT 1. In an August 2013 rating decision, the RO denied service connection for the cause of the Veteran’s death. The appellant was duly notified of the RO’s determination and her appellate rights in a September 2013 letter. 2. Following the appellant’s submission of a notice of disagreement in October 2013, the RO issued a Statement of the Case to the appellant on July 22, 2016. A copy was provided to her then-representative. 3. VA received the appellant’s VA Form 9 on November 15, 2016, more than 60 days after the mailing of the July 2016 Statement of the Case (SOC) and more than one year after notification of the August 2013 rating decision. CONCLUSION OF LAW The appeal of the August 2013 rating decision which denied service connection for the Veteran’s cause of death was not timely. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.300, 20.302, 20.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1965 to September 1967. The appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which determined that a VA Form 9 received in November 2016 could not be accepted as a timely substantive appeal with an August 2013 rating decision which denied service connection for the cause of the Veteran’s death. In a statement received in September 2019, the appellant withdrew her request for a Board hearing. 1. The substantive appeal of an August 2013 rating decision was not filed timely. As a preliminary matter, the Board notes that VA amended its adjudication regulations effective March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in this case was filed before this date, the amended regulations are not for application. The former regulations are cited below where applicable. An appeal to the Board consists of a timely filed notice of disagreement (NOD) in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A Substantive Appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of jurisdiction in reaching the determination being appealed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Proper completion and filing of a Substantive Appeal are the last actions an appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. The substantive appeal must be filed with the VA office from which an appellant received notice of the determination being appealed. 38 C.F.R. § 20.300. To be considered timely, the appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the one-year period from the date of mailing of notice of the initial determination being appealed, whichever period ends later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension must be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. A review of the record indicates that in December 2012, the appellant submitted a VA Form 21-534, Application for Dependency and Indemnity (DIC), Death Pension and Accrued Benefits by a Surviving Spouse. In an August 2013 rating decision, the RO denied service connection for the cause of the Veteran’s death. In a letter dated September 9, 2013, the appellant was notified of the RO’s decision. She was further advised that her claim for pension had been denied based on excessive income and that there were no accrued benefits payable. In October 2013, the appellant submitted a timely notice of disagreement with the denial of service connection for the cause of the Veteran’s death. On July 22, 2016, the RO issued a Statement of the Case (SOC) to the appellant and her then-representative of record. See VA Form 21-22, dated December 11, 2015. The SOC included a VA Form 9, with instructions for filing it. The SOC was mailed to the claimant’s address of record and there is no indication that it was returned undeliverable. The appellant does not contend otherwise. In addition, the record contains no indication that she requested an extension of time to file a substantive appeal and the appellant does not contend otherwise. On July 29, 2016, the appellant executed a power of attorney in favor of her current attorney, Mr. Cameron. On that date, the appellant’s attorney faxed the VA Form 21-22a, along with a Standard Form 180, requesting the Veteran’s military personnel and medical records. He did not request a copy of the claims file at that time. Rather, his request was limited to the Veteran’s military personnel records and medical records. On August 5, 2016, the appellant’s attorney submitted a corrected VA Form 21-22a. Again, he did not request a copy of the claims file. On October 21, 2016, VA advised the appellant’s attorney that it was working on his records request. On November 9, 2016, VA provided the appellant’s attorney with the military personnel and medical records he had requested. On November 15, 2016, VA received a VA Form 9 from the appellant’s attorney on which he claimed the following: Counsel was hired in July 2016. He spoke with the daughter of the claimant, who handles the claimant’s affairs. The daughter was under the impression that the VA Form 9 had been filed with the VA to send the appeal to the Board of Veterans’ Appeals. She told counsel it was filed. As such, counsel submitted the 21-22 and related documents to the Board of Veterans’ Appeals in July 2016. On November 15, 2016, counsel received an incomplete C-file from the VA Records Management Center and called 800-827-1000 to discuss with the VA since the Statement of the Case and Form 9, among other documents, were missing. Counsel called the VA and was informed the VA 9 had not been filed. As such, it is now being submitted. Due to the inability of claimant to handle her own affairs, the correspondence to VA regarding the appeal on July 29, 2016 and August 5, 2016, and the failure for the VA to send the Statement of the Case to the attorney for Claimant, please allow the appeal to proceed to the Board of Veterans’ Appeals. In an attached cover letter, the appellant’s attorney referenced Percy v. Shinseki, 23 Vet. App. 37 (2009), noting that this case had held that VA may waive the issue of timeliness of the appeal but provided no further argument. He also, for the first time, requested a copy of the Veteran’s complete claims file. In a January 2017 letter, the RO advised the appellant that her VA Form 9 was not timely and that her appeal had therefore been closed. The appellant’s attorney appealed the RO’s timeliness determination. He claimed that VA had not sent a copy of the Statement of the Case to his office, nor did VA send any correspondence to his office until after “the deadline” had passed. He further claimed that he had submitted letters to VA and the Board on July 29, 2016, and August 5, 2016, “to pursue the appeal at the Board of Veterans Appeals” and that VA had not responded in a timely fashion. See January 30, 2017, letter. In January 2017, the appellant’s attorney submitted a copy of a letter purportedly dated July 29, 2016, on which he requested an entire copy of the Veteran’s claims file. The letter asked that VA provide him with the requested documents “as soon as possible as I need the entire copy of the file to complete the appeal or provide more information to the BVA.” Although this letter and its attachments are purportedly dated July 29, 2016, they were not received by VA until January 17, 2017. In August 2017, the appellant’s attorney telephoned the RO to discuss the timeliness of the substantive appeal. He claimed that “the widow is easily confused and he was told [the VA Form 9] was submitted at the time he took representation.” Applying the applicable legal criteria to the facts in this case, the Board finds that the November 2016 appeal was untimely. As delineated above, the substantive appeal was received well over 60 days after the issuance of the July 2016 Statement of the Case and well over one year after notification of the August 2013 rating decision. Moreover, there is no indication, nor does the appellant contend, that she filed a request for an extension of time to submit the substantive appeal. The Board has considered the contentions of the appellant’s attorney to the effect that VA did not furnish him a copy of the July 2016 Statement of the Case. As set forth above, however, he was not the attorney of record at the time of the issuance of the Statement of the Case. Indeed, the record reflects that VA properly provided a copy of the Statement of the Case to the appellant’s representative of record at the time. The Board has considered the assertions of the appellant’s attorney that his failure to file a timely VA Form 9 should be excused because he received “an incomplete C-file from the VA Records Management Center” in November 2016 and that the copy of the “Statement of the Case and Form 9, among other documents, were missing.” As set forth above, however, the record on appeal reflects that VA did, in fact, promptly send the appellant’s attorney the records he requested. Again, the appellant’s July 2016 request for records was limited to the Veteran’s military personnel and medical records. He did not request a copy of the claims file at that time. Although the appellant’s attorney has subsequently submitted a copy of a letter purportedly dated in July 29, 2016, that letter and its attachments were not received by VA until January 2017, after he had been advised of his failure to file a timely VA Form 9. The Board has considered the arguments of the appellant’s attorney to the effect that his failure to file a timely VA Form 9 should be excused because the appellant’s daughter advised him that she was “under the impression” that the Form 9 had been filed or, alternatively, “told counsel it was filed” and because “the widow is easily confused and he was told it was submitted at the time he took representation.” The Board, however, notes that individuals who represent claimants before VA are required to provide competent representation, which requires the knowledge, skill, thoroughness, and preparation necessary for representation. Such individuals are also required to act with reasonable diligence and promptness in representing them. See 38 C.F.R. § 14.632. These are such important responsibilities that the law provides for termination of accreditation or authority to provide representation to VA claimants when the individual providing representation demonstrates a lack of the degree of competence necessary to adequately prepare, present, and prosecute claims for VA benefits. 38 C.F.R. § 14.633. Particularly with a client who, by the appellant’s attorney’s own account, lacks the ability to represent herself, it was his responsibility to ensure timely filing of the appeal. The Board has considered the contentions of the appellant’s attorney to the effect that his July 29, 2016, and August 5, 2016, communications should be construed as timely substantive appeals because they were intended “to pursue the appeal at the Board of Veterans Appeals.” The Board, however, finds no basis upon which to accept his communications as a substantive appeal. The July 2016 communication was for the sole purpose of submitting the VA Form 21-22a and requesting the Veteran’s military personnel and medical records. The August 2016 communication was for the sole purpose of correcting the VA Form 21-22a. Neither communication contained any information whatsoever regarding the issue on appeal, neither contained any indication that the communication was intended to perfect the appeal, and neither communication contained any argument relating to errors of fact or law in the determination being appealed. Thus, these communications may not be considered substantive appeals. 38 C.F.R. § 20.202. Similarly, neither communication requested an extension of time in which to file the appeal. Finally, the Board has considered Percy v. Shinseki, 23 Vet. App. 37 (2009). In that case, the U.S. Court of Appeals for Veterans Claims (Court) held that the regulatory and statutory requirements for filing a substantive appeal are not jurisdictional in nature and that “VA may waive any issue of timeliness in the filing of a Substantive Appeal, either explicitly or implicitly.” Percy, 23 Vet. App. at 45. In this case, however, the Board finds no basis upon which to find that VA implicitly waived the requirement for filing a timely substantive appeal. Rather, unlike in Percy, the record shows that the RO promptly notified the appellant that it had determined that her appeal was not timely and duly afforded her the opportunity to appeal that determination. The Board finds no basis for otherwise waiving the filing of the substantive appeal and the appellant’s attorney has not specifically identified any such basis. For the foregoing reasons and bases, the Board finds that a timely substantive appeal was not received with an August 2013 rating decision which denied service connection for the cause of the death. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Grodnitzky, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.