Citation Nr: 20041163 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 14-33 356 DATE: June 17, 2020 ORDER Entitlement to a rating in excess of 10 percent for a right ankle disability during the period beginning February 13, 2009, is dismissed. FINDING OF FACT 1. On October 1, 2018, the Board remanded the claim to the RO so that a statement of the case could be issued. 2. In the October 2018 decision, the Board explicitly informed the Veteran that he would need to perfect an appeal after receiving the statement of the case. 3. On September 20, 2019, the RO sent the Veteran a statement of the case. Included in the statement of the case were instructions on how to perfect an appeal. 4. The Veteran did not respond to the statement of the case within 60 days. CONCLUSION OF LAW The issue of entitlement to a rating in excess of 10 percent for a right ankle disability during the period beginning February 13, 2009, is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in July 2017. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in October 2018, on which occasion the claim was remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability during the period beginning February 13, 2009, is dismissed. The issue of entitlement to a rating in excess of 10 percent for a right ankle disability during the period beginning February 13, 2009, must be dismissed because a substantive appeal, VA Form 9, was not filed. The Board's authority to review an adverse agency of original jurisdiction (AOJ) decision is initiated upon a claimant's submission of a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. §§ 7105(a); 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 AOJ mails the SOC to the claimant, or within a one-year period from the date the decision being appealed was mailed, whichever comes later. 38 C.F.R. § 20.302(b)(1). In determining jurisdiction, the Board recognizes that VA claims proceedings are non-adversarial and pro-claimant in nature, and that pro se filings must be liberally and sympathetically construed. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). 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 AOJ may close the case for failure to respond after receipt of the SOC, see 38 C.F.R. § 19.32, but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). The filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In an October 2018 Board decision, the undersigned determined that the Veteran raised the issue of entitlement to a rating in excess of 10 percent for a right ankle disability in an April 2010 NOD. However, the Board concluded that the claim had not been fully adjudicated by the RO. Therefore, the Board remanded the claim to the RO for further development and for the issuance of a SOC. In doing so, the Board explicitly informed the Veteran that he must perfect an appeal after receiving the SOC. On September 20, 2019, the RO issued a SOC that denied a rating in excess of 10 percent for a right ankle disability. The SOC properly informed the Veteran that he must file an appeal within 60 days of the SOC, or within a one-year period from the appealed rating decision. On January 17, 2020, approximately 120 days after the SOC was mailed to the Veteran, he submitted a VA Form 20-0996 “Decision Review Request: Higher-Level Review.” On January 28, 2020, the RO notified the Veteran that the VA Form 20-0996 would not be accepted, and advised him to submit a VA Form 20-0995 “Supplemental Claim” if he was seeking to have his claim readjudicated by the RO under the Appeals Modernization Act. On February 3, 2020, approximately 137 days after the SOC was mailed to him, the Veteran submitted a VA Form 10182 “Decision Review Request: Board Appeal.” The Veteran indicated that his specific issue of disagreement was entitlement to an increased rating in excess of 10 percent for a right ankle disability from February 13, 2009. However, the Veteran did not select a Board review option. On February 19, 2020, the Board informed the Veteran that the previous VA Form 10182 was incomplete and could not be processed. The Veteran was informed that his request for review would not be processed until a completed VA Form 10182 was submitted. He was given 60 days to submit a complete VA Form 10182. The Veteran complied, and on February 26, 2020, a new VA Form 10182 was received. The Veteran indicated that his specific issue of disagreement was entitlement to an increased rating in excess of 10 percent for a right ankle disability from February 13, 2009, and he selected the hearing review option. On April 29, 2020, the Veteran was notified that his February 26, 2020, VA Form 10182 was not timely and would not be accepted. The Veteran was notified that he had a right to appeal the timeliness determination. However, at the time of this writing the Veteran has not filed an appeal. After a review of the record, the Board finds that the claim must be dismissed, as the Veteran failed to perfect his appeal. While the Board may waive the issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, see Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), the Board declines to do so in this case as the Veteran has failed to provide good cause for his lack of response. The Board finds that timeliness was not implicitly waived. In this regard, in the October 2018 Board Decision, the Veteran was explicitly informed that, after receiving a SOC, he would need to perfect an appeal. Similarly, the September 20, 2019, SOC explicitly informed the Veteran that he needed to perfect an appeal and explained the process by which he could do so. The Board will not consider in this decision whether the February 26, 2020, VA Form 10182 was timely. If the Veteran believes that his submission was timely, he may file an appeal. In light of the aforementioned, the Board finds that it does not have jurisdiction to review the instant appeal. Therefore, the claim must be dismissed. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.