Citation Nr: 20008043 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-32 752 DATE: January 30, 2020 ORDER Entitlement to an earlier effective date prior to May 8, 2014 for the grant of service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal within 60 days of the date on which the February 25, 2014 statement of the case (SOC) was sent to him. 2. The Veteran did not submit a request for an extension of the time limit for filing the substantive appeal prior to the expiration of the time limit for filing the appeal or at the time he submitted the substantive appeal, nor does the doctrine of equitable tolling apply. CONCLUSIONS OF LAW 1. A timely substantive appeal was not filed as to the February 25, 2014 SOC that denied service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305. 2. The criteria for an effective date prior to May 8, 2014, for the grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1978 to March 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision and SOC issued by the Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for sleep apnea with an effective date as of May 8, 2014. In November 2019 the Veteran and his spouse appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 1. Entitlement to an earlier effective date prior to May 8, 2014 for the grant of service connection for sleep apnea The Veteran filed a claim for service connection for sleep apnea in June 2011. The RO denied his claim for sleep apnea in a December 2011 rating decision. The Veteran filed a timely notice of disagreement with that decision in December 2012. The RO issued an SOC on December 25, 2014 continuing the denial of the service connection claim for sleep apnea. The Veteran and his spouse have testified that they walked into the San Bernardino VA location and hand delivered his Substantive Appeal (VA Form 9), together with an FOIA/Privacy Act request. The Veteran further testified that the appeal was dated April 16, 2014 and was handed to a VSO representative (B. H), to be forwarded to the Board. The representative, however, did not file the Substantive Appeal (VA Form 9) until May 8, 2014. As a result, the Veteran did not meet the 60-day filing deadline. The Veteran’s VA form 9 was received by the VA on May 8, 2014 (which was considered untimely and converted into an informal claim/claim to reopen). In a subsequent May 2016 rating decision, the RO granted service connection for sleep apnea with an effective date of May 8, 2014. The Veteran contends that he is entitled to an earlier effective date prior to May 8, 2014 for the grant of service connection for sleep apnea because his substantive appeal in May 2014 was timely. Timeliness of Substantive Appeal Under VA regulations, an appeal consists of a timely filed written notice of disagreement and, after a statement of the case 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, "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 statement of the case 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 statement of the case will be presumed to be the same as the date of the statement of the case 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. § 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. 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. 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 agency of original jurisdiction (AOJ) may close the case for failure to respond after receipt of the statement of the case (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d). Subsequently, in a letter dated July 1, 2014 the RO notified the Veteran that his Substantive Appeal was not timely filed since it was received more than 60 days after issuance of the February 2014 SOC. During his hearing before the Board, the Veteran testified that he timely submitted his Substantive Appeal (VA Form 9) to his representative (co-located in VA office) to file on his behalf. Upon receipt of that Substantive Appeal (VA Form 9), the Board notes that the Veteran's representative did not promptly file it with VA. In the same hearing, the Veteran's current representative acknowledged that the VSO did not file it in a timely manner based on a change in personnel working on the Veteran's claim. The Board acknowledges the Veteran's contention that his representative did not provide him the assistance required to timely file his substantive appeal. However, it is ultimately the Veteran's responsibility to ensure that a substantive appeal is timely filed with VA. If the Veteran's appointed representative failed to file or assist the Veteran in filing a timely substantive appeal, while that is unfortunate, the fact remains that it was not filed on time. Ineffective representation does not serve as a basis upon which to grant the benefit sought here. The record on appeal shows that both the Veteran and his representative were duly notified of the February 25, 2014 SOC and of the 60-day period within which to file a substantive appeal. In any event, ineffective representation would not create a legal right to benefits which are precluded by law. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Rather, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c); see also OPM v. Richmond, 496 U.S. 414, 434 (1990). To the extent that the Veteran appears to argue that his May 8, 2014 VA Form 9 was timely filed, the Board would reiterate that a substantive appeal must be filed within 60 days of the mailing of the statement of the case, or within the remainder of the one-year period following receipt of the rating decision being appealed, whichever is later. 38 C.F.R. § 20.302 (b). Therefore, the Veteran's contention that his substantive appeal was timely filed is not consistent with the regulations. The Board also notes that some AOJ actions may operate as a waiver of the time requirements for filing a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, there is no evidence in this case that the AOJ continued to treat the Veteran's claim as an active appeal. Rather, the AOJ notified the Veteran in a July 1, 2014 letter that his substantive appeal was not timely and that, as a result, the AOJ's decision on his claim was final. See July 1, 2014 Correspondence. In addition, the RO did not certify the issue as being on appeal. Thus, the AOJ 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 the 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). 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 veteran contends that his Form 9 was timely submitted to his representative who in turn failed to timely submit it. The February 2014 SOC advised the Veteran that he could request an extension of the 60-day time period for filing a substantive appeal. As the Veteran did not submit an extension request prior to expiration of the 60-day time limit or with good cause when he filed his substantive appeal, a request for an extension of time to submit a substantive appeal was not filed. As established above, the substantive appeal was also not timely filed. Failure by the Veteran’s representative to timely file his substantive appeal does not rise to the level of "extraordinary" as contemplated by the doctrine of equitable tolling. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). The Board has sympathetically considered the arguments on appeal but can find no basis on which to grant the appeal under the binding laws and regulations. As such, under the facts of this case, the Board concludes that a timely substantive appeal in response to the January 2015 statement of the case was not received by the agency of original jurisdiction. Earlier effective date prior to May 2014. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. See 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156 (a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2). In the present case, in a May 2016 rating decision, the RO denied an earlier effective date prior to May 8, 2014 for sleep apnea because the Veteran did not submit a timely substantive appeal to the February 2014 SOC. The Board has herein denied the Veteran's appeal of the RO's determination that his substantive appeal was untimely. As a result, the December 2011 rating decision denying entitlement to service connection for sleep apnea is final, and an earlier effective date cannot be assigned based on this decision. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.400(r), 20.302, 20.1103. Thus, the Board finds that based on all the evidence, entitlement to an earlier effective date prior to May 8, 2014 for the grant of service connection for sleep apnea is not warranted. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.