Citation Nr: 21065528
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-21 383
DATE: October 26, 2021

ORDER

The issue of whether a substantive appeal was timely filed in response to an August 1, 2017 statement of the case (SOC) is denied.

FINDING OF FACT

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 August 1, 2017 SOC was sent to the Veteran for the denial of his claims for service connection for a psychiatric disability and hypertension.

CONCLUSION OF LAW

The criteria for timely filing a substantive appeal to the June 2016 rating decision have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1974 to November 1975 in the U.S. Air Force. This matter comes before the Board of Veterans' Appeals (Board) from a December 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing in June 2021. A copy of the hearing transcript is of record.

Timeliness of Appeal

Under VA regulations, an appeal consists of a timely filed written notice of disagreement (NOD) and, after an 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 (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).

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).

In the instant case, the RO issued a rating decision in June 2016, which denied service connection for a psychiatric disability and hypertension. Notification of this decision was sent on June 28, 2016. VA received a timely NOD in January 2017. Thereafter, the RO issued an SOC with an associated notification letter dated August 1, 2017, reflecting a mailing address as the Veteran's address of record with notation of a copy sent to his representative. In the 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 June 28, 2017). 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 expired. He was also notified of the attached VA Form 9, a substantive appeals form, with instructions on how to fill it out.

VA received a VA Form 9 on November 10, 2017, which was filed past the 60-day deadline from the issuance of the August 2017 SOC, and past the one-year deadline of the June 2016 rating decision. Additionally, nothing was received by the VA between issuance of the August 2017 SOC and receipt of the November 2017 VA Form 9. In a December 2017 letter, VA informed the Veteran that the November 2017 VA Form 9 was untimely.

There is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. Davis v. Brown, 7 Vet. App. 298, 300 (1994); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption with regard to the mailing of the SOC in this case. Here, there is no evidence to refute that the SOC was properly mailed as indicated on the notification letter within the claims file and there is no indication that the mailing of the SOC was returned as undeliverable. Moreover, the Veteran testified that he received the SOC. See June 2021 Hearing Transcript. Accordingly, the presumption of regularity is not rebutted. 

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 VA Form 9 within 60 days of the August 2017 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. 

Finally, there is no indication the AOJ waived objection to the untimeliness of the Veteran's substantive appeal, as it sent a letter in December 2017 to the Veteran explaining its determination that the November 2017 VA Form 9 was not timely and informed him that he could appeal the decision. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). This case is distinguishable from Percy, 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.

Accordingly, the Board finds that the Veteran did not file a timely substantive appeal following the August 2017 SOC. Therefore, the claim is denied. 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Kernen, 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.