Citation Nr: 21002057 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-25 036 DATE: January 12, 2021 ORDER The appeal as to whether a timely substantive appeal was filed with respect to a July 21, 2010 statement of the case (SOC) is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal setting out arguments relating to errors of fact or law within 60 days of the date of mailing of a July 21, 2010 SOC. 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. CONCLUSION OF LAW A timely substantive appeal was not filed as to the July 21, 2010 SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302, 20.303, 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1983 to October 1998, from February 2003 to October 2004, and from March 2005 to June 2008. He also had service in a reserve component of the military. His decorations include the Army Commendation Medal, the National Defense Service Medal, and the Meritorious Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a July 2018 decision, the Board denied the appeal as to whether a timely substantive appeal was filed with respect to a July 21, 2010 SOC. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 memorandum decision, the Court vacated the Board’s July 2018 decision and remanded the matter for readjudication. Timeliness of substantive appeal The Veteran asserts that a substantive appeal he filed with respect to a July 21, 2010 SOC should be accepted as timely. In order for the Board to have jurisdiction to review an agency of original jurisdiction (AOJ) denial under the legacy system, there must be a timely substantive appeal. A timely substantive appeal initially requires that a written notice of disagreement (NOD) be filed within one year after the date of notice of the AOJ denial. Next, the AOJ must issue a SOC on the matter being appealed. Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board. A timely substantive appeal is one filed in writing, within 60 days of the date of notice of the SOC, or within the remainder of the one-year period of the date of notice of the AOJ rating decision being appealed, whichever is later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2018). 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) (2018). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32 (2018)), 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) (2018). Pursuant to 38 C.F.R. § 3.109 (2018), time limits for filing may be extended in some cases on a showing of good cause. However, the Court has held that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231 (1992). Specifically, 38 C.F.R. § 3.109(b) (2018) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner. Thus, a claimant who fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, is statutorily barred from appealing the AOJ decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996). In this case, an October 2008 rating decision, in pertinent part, denied service connection for a low back disability, denied service connection for a left ear hearing loss disability, granted service connection for atrial fibrillation at a noncompensable evaluation, granted service connection for hypertension at a noncompensable evaluation, granted service connection for arthritis of the right ankle at a noncompensable evaluation, granted service connection for a surgical scar of the right ankle at a noncompensable evaluation, granted service connection for first-degree atrioventricular block at a noncompensable evaluation and granted service connection for right ear hearing loss at a noncompensable evaluation. After the Veteran filed a timely notice of disagreement (NOD) with the October 2008 rating decision, a SOC was issued on July 21, 2010. The letter accompanying the July 2010 SOC was addressed to the Veteran and informed him that he had the right to file a VA Form 9 (Appeal to the Board of Veterans’ Appeals) or equivalent substantive appeal within 60 days from receipt of the notice letter or the remainder if any, of one year following receipt of notice of the October 2008 rating decision. 38 C.F.R. §§ 19.30(a)-(b), 20.302(b)(1) (2018). The letter also enclosed a blank VA Form 9 and informed the Veteran that he could request an extension within the 60-day period for more time to file and perfect his appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.303 (2018). Thereafter, the Veteran’s substantive appeal, dated April 29, 2011, was received at the AOJ more than 60 days following the issuance of the SOC on July 21, 2010 (i.e., past the due date of September 19, 2010 for submission of a substantive appeal). As such, a substantive appeal was not received by VA within the regulatory time limits. There are three possible exceptions to the finality rule in this case. First, the filing limit could be tolled with a timely request for an extension of time to submit a substantive appeal under 38 C.F.R. § 20.302 (2018) or an extension of the filing deadline under 38 C.F.R. § 3.109 (2018). In this case, the Veteran does not allege, and the record does not otherwise show, that a timely request for an extension of the filing deadline was filed. 38 U.S.C. § 7105(d)(3) (2012) (a substantive “appeal should set out specific allegations of error of fact or law . . . related to specific items in the [SOC]”); 38 C.F.R. § 20.200, 20.202 (2018). Accordingly, this exception does not apply. Second, the filing of a substantive appeal is not a jurisdictional requirement and may be waived either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37 (2009). The filing of a timely substantive appeal is implicitly waived where VA takes actions indicating that it has accepted the issues as being on appeal without the filing of a timely substantive appeal. Id; see also Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that a claimant’s failure to file a timely substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32). However, in this case, this exception is not applicable. While timely receipt of a substantive appeal is not a jurisdictional prerequisite, in this Veteran’s case, there has been no explicit or implicit representation by VA, either by the RO or the Board, that the filing requirement of a timely substantive appeal was waived. Percy; supra. In January 2012, the RO sent a letter to the Veteran informing him that his VA Form 9, received in April 2011, was not a timely appeal as it was not within a year of the October 2008 rating decision and not within 60 days of the July 2010 SOC. The Veteran timely perfected an appeal of that determination. After certification to the Board, the Board took no action that would represent a waiver of the time requirement for filing the substantive appeal. Neither the Board nor the RO took any actions indicating that VA had accepted the appeal as having been perfected or that the filing of a timely substantive appeal was waived. The Board has also considered the doctrine of equitable tolling. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that in order to benefit from equitable tolling, a claimant must demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005), adhered to on reconsideration, 20 Vet. App. 86 (2006). This is consistent with guidance provided by the Supreme Court. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies . . . . But the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.”). In order to obtain the benefit of equitable tolling, a claimant must show that the failure to file was the direct result of a mental illness that rendered him or her incapable of rational thought or deliberate decision making, or incapable of handling his or her own affairs or unable to function in society. See Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). Here, the Veteran does not allege, and the record does not otherwise show, that he had a disability so severe as to warrant equitable tolling. As such, the Board finds no basis for equitable tolling of the filing deadline. Because causation has not been shown, equitable tolling is not applicable. The Veteran contends that the time limit for filing the substantive appeal at issue should have been tolled because he filed a Freedom of Information Act (FOIA) request in August 2010 in order to receive a copy of a February 2010 VA examination report. In this regard, he asserts that VA did not provide him with the requested records in a timely manner because his FOIA request was not fulfilled until August 2011. As an initial matter, the Board observes that the Veteran referenced portions of the February 2010 VA examination report in his April 2011 substantive appeal. As such, it appears that he had access to a copy of that report before he filed the April 2011 substantive appeal. This evidence preponderates against a finding that he did not have a copy of the February 2010 VA examination report until VA provided him with that report in August 2011. In the June 2020 memorandum decision, the Court remanded the issue on appeal for the Board to consider the Court’s decision in Smith v. Wilkie, 32 Vet. App. 332 (2020), which “found a violation of fair process when a veteran relied to his detriment on VA language that could reasonably lead a claimant to conclude that a matter was favorably settled.” The Court noted that it was unclear if the Board in its July 2018 decision considered whether VA’s conduct in this case unfairly led the Veteran to conclude that he could file his substantive appeal after he received the information he requested pursuant to the FOIA. In Smith, 32 Vet. App. 332, in denying a service connection claim, the underlying Board decision found that a veteran’s lay testimony was not credible despite findings in two prior Board remands to the effect that his testimony was credible. The Court held that principles of fair process required the Board to provide claimants notice and an opportunity to respond when it purports to reverse a prior characterization that evidence is credible or otherwise satisfactory to establish a fact necessary to establish entitlement to VA compensation benefits. The facts of the present case are distinguishable from the facts in Smith. Specifically, at no point during the relevant appeal period did VA make a finding, explicit or implicit, that the Veteran submitted a timely substantive appeal with respect to the July 21, 2010 SOC. Because VA made no finding that the Veteran submitted a timely substantive appeal, the January 2012 AOJ determination that the April 2011 substantive appeal was untimely was not a reversal of a prior favorable finding. Rather, it was a finding in the first instance that his substantive appeal was not timely. Nor did VA’s conduct in this case unfairly lead the Veteran to conclude that he could file his substantive appeal after he received the information he requested pursuant to the FOIA. As noted, the letter accompanying the July 2010 SOC plainly informed the Veteran that he had the right to file a VA Form 9 or equivalent substantive appeal within 60 days from receipt of the notice letter or the remainder, if any, of one year following receipt of notice of the October 2008 rating decision. The letter also enclosed a blank VA Form 9 and informed the Veteran that he could request an extension within the 60-day period. An August 2010 VA Form 21-0820, Report of General Information, noted that Veteran called to check on the status of a request for the February 2010 VA examination report. A January 2011 congressional submission shows that the Veteran reported that he submitted a FOIA request in August 2010 for a copy of the February 2010 VA examination report. In August 2011, VA provided the Veteran with a copy of the February 2010 VA examination report. Throughout the period from July 2010 to April 2011 (date of submission of substantive appeal), VA’s conduct did not in any way lead the Veteran to conclude that he could file his substantive appeal after he received the information he requested pursuant to the FOIA. While the Veteran indicated that he had to wait until August 2011 for his FOIA request to be fulfilled, the Veteran still submitted his substantive appeal via a VA Form 9 approximately 4 months earlier, in April 2011. This evidence weighs against the Veteran’s assertions that he was waiting for the his FOIA request to be fulfilled in order to submit his substantive appeal. In sum, the SOC at issue was mailed on July 21, 2010. The Veteran had until September 19, 2010 to file a substantive appeal. However, his substantive appeal was not received until April 29, 2011, more than 7 months past the deadline. He did not file a request for an extension of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303 (2018). Since that time, the RO has not treated the claim as timely appealed, but rather certified the issue of the timeliness of the Veteran’s appeal to the Board. See Percy, 23 Vet. App. at 45. The Veteran did not otherwise show good cause for failure to timely appeal and there is no showing of physical and/or mental incapacity to warrant equitable tolling of the filing deadline. The law is clear that a substantive appeal must be filed with the AOJ within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. See 38 U.S.C. § 38 U.S.C. § 7104 (2012). For the foregoing reasons, the Board concludes that a timely substantive appeal was not filed following the July 2010 SOC. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ragheb, Johnny 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.