Citation Nr: 21064195 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 13-24 725 DATE: October 19, 2021 ORDER The appeal as to whether a substantive appeal was timely received in response to the Statement of the Case issued on June 21, 2017, is granted. FINDING OF FACT Conferring the benefit of the doubt in the Veteran's favor, the actions by the Department of Veterans Affairs (VA) subsequent to the issuance of the June 2017 Statement of the Case (SOC) implicitly waived the timeliness requirement regarding the Veteran's substantive appeal that was received on October 19, 2017. CONCLUSIONS OF LAW The October 19, 2017, VA Form 9 as to the June 21, 2017, SOC is accepted as timely. 38 U.S.C. §§ 5104, 7105; 38 U.S.C. §§ 19.32, 20.200, 20.300, 20.302, 20.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to February 1971. These matters have a procedural history which includes a Board Decision in July 2019 in which the Board noted that the Veteran's claims for a higher rating for hemioplasty, service connection for emphysema, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) had not been timely appealed and declined to adjudicate those issues. A March 2021 Memorandum Decision of the Court of Appeals for Veterans Claims (Court) found that the Board had not provided adequate reasons and bases for finding that a substantive claim had not been timely filed regarding the aforementioned issues. Timeliness of Supplemental Claim Under VA regulations, an appeal consists of a timely filed written notice of disagreement 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, 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 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). However, the AOJ may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009). In addition, the filing of a timely substantive appeal, as opposed to a Notice of Disagreement, is not a jurisdictional bar to the Board's jurisdiction. The Board may waive the requirement of timeliness of a substantive appeal. The Board may also decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. Percy, 23 Vet. App. 37, 45. The facts of this matter are largely undisputed. The record shows that on June 21, 2017, the AOJ provided to the Veteran and his private attorney a SOC adjudicating the issues of a higher rating for hemioplasty, service connection for emphysema, and entitlement to a TDIU. The SOC was sent to the Veteran's most recent address of record and a copy was sent to the Veteran's attorney at his address on file. On October 21, 2017, the Veteran's attorney filed a Form 9 corresponding to the June 2017 SOC, specifically requested that the Veteran's substantive appeal be accepted as timely, claiming that his office had not received the June 2017 SOC until August 31, 2017, when he was able to access the Veteran's Benefits Management System (VBMS). In support of the Veteran's appeal, his private attorney has set forth several arguments which, in sum, attempt to rebut the presumption of regularity with regard to the issuance of the June 2017 SOC. While the Board acknowledges these arguments, they are insufficient to rebut this presumption, as neither copy of the SOC sent to the Veteran or his private attorney were returned to VA as undeliverable by the United States Postal Service or by any other means. Davis v. Principi, 17 Vet. App. 29 (2003); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Derwinski, 2 Vet. App. 62 (1992). However, notwithstanding the above, the Board concludes that the Veteran's appeal has merit due to the actions and inactions of VA subsequent to the AOJ's receipt of the Veteran's October 2017 substantiative appeal. As such, for the reasons discussed below, the Board concludes that, while the Veteran's October 2017 substantive appeal was not filed in a timely manner, VA implicitly waived the timeliness requirement regarding this filing. First, there is no indication in the file that the AOJ acted upon the Veteran's untimely Form 9, to include the preliminary matter regarding its timeliness. The Board did not find in the record any indication provided to the Veteran or his representative that a determination of untimeliness had been made regarding the Form 9 or that the Veteran's claims had been closed. There is simply no response to the Veteran and his representative's Form 9. Second, after the Veteran filed a supplemental claim regarding the issue of emphysema, VA issued to the Veteran a letter stating that "VA was unable to take any action regarding [his claim] because the issue is currently under appeal at your request." See November 2018 letter to the Veteran. Based on the foregoing and conferring the benefit of the doubt in the Veteran's favor, the Board concludes that the totality of these facts amounts to VA's implicit waiver of the timeliness requirement regarding the issues of a higher rating for hemioplasty, service connection for emphysema, and entitlement to a TDIU. In arriving at this conclusion, the Board notes that the crux of the present case is congruent with the facts and holding in Percy, as recounted above. In light of above, the Veteran's appeal stemming from the February 2014 rating decision is "revived," and remains pending; however, the Board may not address the merits of this appeal at this time because the Veteran's Form 9 requested a hearing on the issues of a higher rating for hemioplasty, service connection for emphysema, and entitlement to a TDIU. As such, the AOJ must take any necessary actions to reactivate the Veteran's appeal and certify these issues to the Board specifically noting the Veteran's request for a hearing on these issues in its certification. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.