Citation Nr: 21002542 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-34 806 DATE: January 14, 2021 ORDER The appeal to establish that a timely substantive appeal was received by VA in response to a November 2013 Statement of the Case is denied. REMANDED Entitlement to an initial compensable rating for service-connected folliculitis barbae is remanded. 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 on which the November 7, 2013 SOC was sent to the Veteran for the denial of his claims for service connection for back pain, major depression, schizophrenia, and tremors. 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 1. A substantive appeal regarding the issues of entitlement to service connection for back pain, major depression, schizophrenia, and tremors was not timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.300, 20.302(b), 20.305. REASON AND BASE FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1980 to September 1984 and September 1986 to September 1993. This matter for an increased initial rating for service-connected folliculitis barbae comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge and the transcript of the hearing is of record. Timeliness of the Appeal Legal Principles and Regulations Under VA regulations, an appeal consists of a timely filed written notice of disagreement (NOD) and, after a statement of the case (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 Veteran’ 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 mails the SOC to the veteran, 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 SOC will be presumed to be the same as the date of the SOC 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. A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305. 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 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). Analysis The Veteran seeks entitlement to service connection for back pain, major depression, schizophrenia, and tremors (disabilities). See December 2010 Veteran’s Application for Compensation and/or Pension. Here, on May 18, 2011, in a rating decision the RO denied the Veteran’s claim for entitlement to service connection for disabilities. See May 2011 Rating Decision. In a May 2011 notification letter, the Veteran was informed that he had one year from the date of his notification letter to appeal his denial with an explanation of his right to appeal. Subsequently, the Veteran timely filed a notice of disagreement (NOD), which was received on August 2, 2011, in which he sought reconsideration of his claim for entitlement to service connection for disabilities. See August 2011 NOD. On November 7, 2013, a statement of the case (SOC) pertaining to these claims was issued. In that notification letter, the Veteran was advised that he had either 60 days to submit a substantive appeal, or within the remainder, if any, of the one-year period from the date of the rating decision of which the Veteran has appealed (period expired on May 18, 2012). The Veteran was also informed that if VA does not hear from him in the within this period, then his case will close. Additionally, the Veteran was informed that if he needs more time to file an appeal, he should request more time before the time limit for filing his appeal has expired. He was also notified of the attached VA Form 9, a substantive appeals form, with instructions on how to fill it out. On September 17, 2014, VA received a substantive appeal (VA Form 9), which was dated September 10, 2014. See September 2014 VA Form 9. In an October 23, 2014 letter, VA informed the Veteran that the Veteran’s September 17, 2014 VA Form 9 was untimely, as it was filed past the 60 days deadline from the issuance of the November 7, 2013 SOC, and it was filed past the one year deadline of the May 18, 2011 rating decision. See October 2014 VA Notification Letter. The Board first notes that in regard to his claim for service connection for disabilities filed in December 2010, the Veteran’s VA Form 9 was received on September 17, 2014. This was about eight months after the deadline for filing. Additionally, nothing was received by the VA between issuance of the November 2013 SOC and receipt of the VA Form 9. In addition to the VA Form 9, the Veteran submitted a statement of the case. Here, the Veteran stated that he had difficulty responding to the November 2013 SOC as he had moved and received the letter late. He requested that the RO reconsider and reopen his claim as he has responded within one year from issuance of the SOC. In addition, the Veteran stated that he was also submitting a signed VA Form 9 that is past due. See September 2014 Statement in Support of Claim. The Court has held that there is a presumption of regularity that the Secretary properly discharged official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant’s representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000). The appellant may rebut that presumption by submitting “clear evidence” to the effect that VA’s regular mailing practices are not regular or that they were not followed. The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the appellant at his or her last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). Here, the Board sent notice to the Veteran’s last known address. The VA was not informed of the Veteran’s new address until September 2014. In the September 2014 statement in support of claim sent along with the VA Form 9, the Veteran noted that his VA Form 9 was untimely and did not provide an explanation as to the reason. See September 2014 Statement in Support of Claim, September 2014 VA Form 9. During the December 2018 VA hearing, the Veteran acknowledged that there was no issue with the November 2013 SOC but stated that the November 2013 SOC “probably didn’t come to my mailbox on time.” See December 2018 VA Hearing Transcript, pg. 5. The Veteran continued to state that he always sends requests from the VA promptly. See id. Unfortunately, the Board finds the Veteran did not meet the burden of clear evidence that the VA mail was not received timely. The Board notes that after mailing of the November 2013 SOC, no returned mail was received or any change of address. There is no evidence to show that the Veteran did not receive the SOC in a timely manner. Accordingly, the presumption of regularity is not rebutted. Finally, there is no indication the originating agency waived objection to the untimeliness of the Veteran’s substantive appeal, as it sent a letter in October 2014 to the Veteran explaining its determination that the substantive appeal was not timely and informed him that he could appeal the decision. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Upon the Veteran filing a signed NOD, VA provided the Veteran with a November 2013 SOC. After receipt of the untimely VA Form 9, the RO issued another SOC in June 2016 stating the Veteran’s VA Form 9 was untimely. Id. Therefore, the VA has not waived the untimely Form 9. The law is dispositive and requires that the Veteran must file a timely substantive appeal within 60 days of the date the SOC was mailed to the Veteran or request an extension with good cause. The Board is bound to the laws and regulations governing the appellate process. Given the lack of probative evidence that the RO received a timely Form 9 within 60 days of the November 2013 SOC, the Board finds that the Veteran did not file a timely appeal. Moreover, the Board finds that a waiver of timeliness in the filing of a substantive appeal is not warranted in this case as the Veteran did not submit a written request for an extension of the 60-day mandatory period nor has he rebutted the presumption of regularity or provided good cause otherwise. The SOC was properly mailed to the address on file and proper notification of the required 60-day response period was rendered. The Board notes that this case is distinguishable from Percy, 23 Vet. App. 37 (2009), wherein 38 U.S.C. § 7105 was held to not foreclose the Board’s exercise of jurisdiction over a matter in which a substantive appeal is untimely. Here, unlike in Percy, the RO did not treat the appellant’s claims as having been timely appealed at any time. Therefore, the appeal of whether a substantive appeal was timely filed in response to a November 2013 Statement of the Case is denied. REASONS FOR REMAND 1. Folliculitis Barbae Unfortunately, the Board finds a remand is warranted for a new VA examination. The Veteran last underwent a VA examination for his service-connected folliculitis barbae in March 2017 and is currently receiving a noncompensable rating. A new VA examination must be obtained to assess the current severity of the Veteran’s service-connected folliculitis barbae. The Veteran was last provided a VA examination for compensation purposes in March 2017, which found the Veteran suffered from folliculitis barbae on less than five percent of his body. See March 2017 VA Skin Disease Disability Benefits Questionnaire (DBQ). In a December 2018 Board hearing, the Veteran asserted that the severity of his folliculitis barbae has worsened since his last VA examination in March 2017. In support of this assertion, the Veteran reported that his condition is bothersome everyday including on his feet. The Veteran reported his symptoms including a large amount of itching in which he is medicated for. See December 2019 Hearing Transcript, pg. 6-7; December 2020 Appellant’s Brief. Therefore, based on the Veteran’s statements as to the increase in severity of his service-connected folliculitis barbae, the Board finds that a new VA examination is needed to ascertain the current severity and manifestation of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Ensure that any VA records from July 2020 to current are obtained and associated with the claims file. Any efforts to secure these records must be documented in the electronic claims file and the Veteran informed if any of these records are unable to be secured pursuant to 38 C.F.R. § 3.159(e). 2. After completing the above, and any additional development warranted by the record, schedule the Veteran for examination with an appropriate clinician to ascertain the severity of his service-connected folliculitis barbae. The examiner should review the entire claims file. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. The RO should consider acceptable clinical examination (ACE). The examiner is asked to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the frequency, severity, and duration of symptoms. Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the frequency, severity, and duration of symptoms. (b.) Address the Veteran’s contention regarding the severity of his conditions, to include contentions in the December 2020 Appellant’s Brief. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.