Citation Nr: 21065491 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-00 282A DATE: October 26, 2021 ORDER The appeal as to whether a timely substantive appeal was filed as to the May 13, 2016, statement of the case (SOC) on the issue of entitlement to service connection for Dercum's disease is denied. FINDING OF FACT The VA Form 9 received on July 25, 2016, and postmarked July 23, 2016, filed as a substantive appeal of the May 13, 2016, SOC sent to the Veteran on May 18, 2016, denying service connection for Dercum's disease stemming from a June 2014 rating decision was untimely; and the Veteran did not file for a good cause extension prior to the expiration of the time limit for filing the substantive appeal. CONCLUSION OF LAW The criteria for the timeliness of the filing of the substantive appeal for service connection for Dercum's disease are not met. 38 U.S.C. §§ 503, 7105, 7108; 38 C.F.R. §§ 20.202, 20.302, 20.303, 20.305 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1990 to May 1994. In May 2021, she testified at a hearing before the undersigned Veterans Law Judge (VLJ). Whether a timely substantive appeal was filed with respect to a June 2014 rating decision and May 2016 SOC for the issue of entitlement to service connection for Dercum's disease Under the provisions in effect during the applicable time for the Veteran's appeal, under 38 U.S.C. § 7105(a), an appeal to the Board of Veterans' Appeals (Board) must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case (SOC) is furnished to the claimant. 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 Agency of Original Jurisdiction (AOJ) mails the SOC 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 period ends later. 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. When the Rules require that any written document be filed within a specified period of time, 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. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b). When a claimant fails to file a timely appeal and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the AOJ. Roy v. Brown, 5 Vet. App. 554, 556 (1993). 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). In this case, the May 13, 2016, SOC was issued after the one-year appeal period following the date of notification of the June 2014 rating decision. As such, the Veteran needed to file her substantive appeal within 60 days from the date the AOJ mailed the SOC. The claims file reflects that the AOJ mailed the SOC to the Veteran on May 18, 2016. See November 28, 2016, Correspondence to Veteran. Therefore, the date for timely filing of the Veteran's substantive appeal was Monday, July 18, 2016, the first succeeding workday following 60 days from the date of mailing of the SOC, which fell on Sunday, July 17, 2016. See 38 C.F.R. § 20.305(b). The Veteran's substantive appeal was received by VA on July 25, 2016, and was postmarked July 23, 2016. As such, the substantive appeal was not postmarked prior to expiration of the applicable time limit, which ended on Monday, July 18, 2016. At the May 2021 Board hearing, the Veteran's representative argued that the substantive appeal should be considered timely because weekends and holidays should be excluded from determining the 60-day deadline. The Veteran also asserted that she was having difficulty getting out of bed during the 60-day deadline period due to the condition she was seeking to service connect. She was in diapers, and going to the post office was extremely difficult for her at that time. To the extent that the Veteran has pleaded for a good cause extension in her Board hearing testimony because it was physically difficult for her to get to the post office during the time period in question, the Board is sympathetic to her situation. Unfortunately, a request for an extension must be made in writing prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. The claims file does not contain such a request having been submitted prior to July 18, 2016, and the Veteran has not asserted such. Thus, the Board is without authority to grant an extension in this case. As to the Veteran's representative's argument that the time limit for filing the substantive appeal should be computed exclusive of all weekends and holidays, VA regulations do not allow for such a computation of days. The regulations are clear that considerations of weekends and holidays are only to be made where the deadline would fall on such a date. See 38. C.F.R. § 3.305(b). Such is actually the case in this scenario, as previously discussed, which is why the deadline for filing the substantive appeal ended on Monday, July 18, 2016, rather than on Sunday, July 17, 2016. The Board also notes that the postmark for the Veteran's substantive appeal is of record, and clearly shows a postmark date of July 23, 2016. Thus, the Board is precluded from affording the Veteran the earlier postmark presumption afforded under 38 C.F.R. § 20.305(a). Although the Board finds this situation unfortunate and wishes it could afford the Veteran a more favorable outcome in light of her substantive appeal only being postmarked five days beyond an acceptable deadline, as previously noted, the Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey, 6 Vet. App. at 425. Unfortunately, in light of the above set of facts, the July 25, 2016, substantive appeal VA Form 9 (postmarked July 23, 2016), which appealed the May 13, 2016, SOC (that was mailed to the Veteran on May 18, 2016), and which denied service connection for Dercum's disease, is untimely. The appeal is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.