Citation Nr: 20021692 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-32 617 DATE: March 26, 2020 ORDER A VA Form 9 (substantive appeal) having been timely filed in response to a January 2018 statement of the case (SOC), reinstatement of the underlying appeal is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s attorney did not receive the SOC dated January 8, 2018 until June 15, 2018 and the substantive appeal was received July 2, 2018, within sixty days of this correspondence. CONCLUSION OF LAW The Veteran filed a timely substantive appeal, VA Form 9, regarding the August 6, 2014 notification letter denying dependency of a child. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 3.109(b), 20.200, 20.202, 20.302, 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to February 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 dependency decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. VA regulations provide that an appeal 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, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions an appellant must take in order to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the RO 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 comes later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b). If a claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he or she is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992); cf. Rowell v. Principi, 4 Vet. App. 9 (1993). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. An untimely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Turning to the facts of the case, in November 2012, the Veteran submitted VA Form 21-686c, Declaration of Status of Dependents, for his dependents, to include his son, A.W. In June 2014, the RO sent the Veteran a letter asking him to furnish the son’s address. The Veteran submitted a statement in July 2014 indicating that he is unable to provide an address for his son, but enclosed child support documents. On August 6, 2014, the RO sent the Veteran a letter denying his claim to add his dependent child, A.W., to his award. The Veteran’s attorney submitted a NOD in August 2014 and listed “all issues decided in the referenced decision” and the notification letter date was written in as August 6, 2014. The RO asked the Veteran to clarify the issue he intended to appeal in the August 2014 NOD. The Veteran changed attorneys after the August 2014 NOD was submitted. The Veteran retained the current attorney as the previous attorney had submitted a notice of withdrawal from representation. See August 2015 Power of Attorney. The Veteran’s new attorney responded in August 2015, that the August 2014 NOD was in reference to the Veteran’s entitlement to dependency benefits for his son, A.W. In this regard, there is no dispute that the August 2014 NOD was filed as timely as the NOD was received within one year of the notification letter. A SOC was issued in January 2018 and it is to be noted that the Power of Attorney (POA) on the header was listed as “None.” The RO, in the January 2018 SOC, determined that the dependent child claim for the Veteran’s son was properly denied. On July 2, 2018, the Veteran’s attorney submitted VA Form 9 in response to the January 2018 SOC for the denial of dependency benefits for the dependent son. Along with the VA Form 9, the Veteran’s attorney also submitted the copy of the January 2018 SOC he received. He argued that he did not receive the SOC until June 15, 2018. The Board notes that the attorney’s copy of the SOC shows that it was not mailed to his office until June 12, 2018, as indicated on the postmark of the VA envelope. There is also a date stamp of June 15, 2018 as received at the attorney’s office. Furthermore, the last page of the SOC that was mailed to the attorney shows his name and firm’s address, which was not previously listed on the January 2018 SOC. In a December 2018 SOC, the RO indicated that based on discrepancies noted with the initial mailing and receipt of the VA Form 9, the case must be assigned to the St. Petersburg RO as review of this decision is under its jurisdiction. In a September 2019 SOC, the St. Petersburg RO addressed the matter of whether the VA Form 9 filed in July 2018 was timely and found that the VA Form 9 received July 2, 2018 was untimely. However, unlike the January 2018 SOC, the September 2019 SOC acknowledged the Veteran’s attorney as his POA. The Veteran’s attorney submitted a timely Form 9 in October 2019 in response to the September 2019 SOC. Here, the attorney was properly included as the representative in the September 2019 SOC and notification letter. In response, he filed a timely VA Form 9 in October 2019. The Board finds that the Veteran’s attorney has consistently responded in a timely manner to any correspondence from the RO. He also has consistently inquired about the status of his appeals. The Board acknowledges that under the presumption of regularity, "it is presumed that government officials 'have properly discharged their official duties.'" See Ashley v. Derwinski, 2 Vet. App. 307 (1992). Nevertheless, given the specific facts of this case, the Board finds that this presumption has been rebutted. Resolving all reasonable doubt in his favor, the Veteran’s attorney did not receive the SOC dated January 2018 until June 2018. See 38 U.S.C. § 5107(b). Given that the Veteran’s attorney submitted his substantive appeal, VA Form 9, within 60 days of being notified of the SOC in June 2018, the Board finds that it was timely. See 38 C.F.R. § 20.302. As such, the appeal as to the timeliness of the July 2018 VA Form 9 is hereby granted and the appeal of the underlying claim should be reinstated. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.