Citation Nr: 21070226 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-54 545 DATE: November 23, 2021 ORDER The November 17, 2015 request for a Decision Review Officer (DRO) hearing was not a timely Substantive Appeal; the appeal is denied. FINDINGS OF FACT 1. An October 2015 rating decision denied a compensable rating for lipomas of the arm, chest, and back, as well as service connection for paroxysmal atrial fibrillation, neurodermatitis, and obstructive sleep apnea. 2. Notification of this decision was sent to the Veteran on November 4, 2015. 3. A statement of the case (SOC) regarding these issues was sent to the Veteran on September 1, 2016. 4. The Veteran did not file a Substantive Appeal within 60 days of the SOC. 5. The Veteran did not file a Substantive Appeal within one year of the notification of the October 2015 rating decision. CONCLUSION OF LAW The November 17, 2015 request for a DRO hearing is not considered a timely Substantive Appeal. 38 U.S.C. § 7105 (2021); 38 C.F.R. §§ 19.20, 19.22, 19.30, 19.32, 19.34 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1967 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2016 jurisdictional determination by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran testified before a DRO at a hearing in April 2017, and before the undersigned Veterans Law Judge in July 2021. Transcripts of both hearings are associated with the record. Whether the November 17, 2015 request for a DRO hearing was a timely filed Substantive Appeal. The Veteran contends that his prior appeal for a compensable rating for lipomas of the arm, chest, and back, as well as service connection for paroxysmal atrial fibrillation, neurodermatitis, and obstructive sleep apnea, should be reinstated. In this regard, he contends that the November 17, 2015 request for a DRO hearing should be considered a timely Form 9 Substantive Appeal. Specifically, he asked the AOJ for a waiver of the timeliness and he stated that he asked his representatives to request a DRO hearing multiple times during the pendency of the original appeal, but this request was never carried out. However, after a review of the record, a timely Form 9, or other correspondence accepted as a Substantive Appeal, was not timely filed, and his appeal must be denied. In the Legacy Appeals system, an appeal to the Board initially requires that a written notice of disagreement (NOD) be filed within one year after the date of notice of the denial. Next, the AOJ must issue a SOC on the matter or matters 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 RO decision being appealed, whichever is later. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.22, 19.52, 19.53. 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 C.F.R. § 19.52. In the instant matter, the Veteran's claims were denied in an October 2015 rating decision, and notification of this decision was sent to the Veteran on November 4, 2015. He initiated an appeal by filing an NOD in November 2015. In an accompanying page to the NOD, the Veteran's representative stated they were aware of the DRO review process, but explicitly elected the traditional appeal process. See November 9, 2015 Third Party Correspondence. The Veteran switched representation from his prior representative, the State of Connecticut Department of Veterans Affairs, to Disabled American Veterans (DAV) in March 2016. On September 1, 2016, the AOJ sent the Veteran and his representative DAV an SOC continuing the denials from the October 2015 rating decision. On November 22, 2016, VA received correspondence from the Veteran requesting a DRO hearing, which was dated November 17, 2016. In a December 2016 notification letter, the AOJ informed the Veteran that they could not accept his request for a DRO hearing as he did not submit a timely VA Form 9, or a statement in lieu of a Form 9. The AOJ noted that he was notified of the October 2015 denial on November 4, 2015, and he was sent the SOC on September 1, 2016. Therefore, the latest his Substantive Appeal could have been timely filed was November 4, 2016, but no Form 9 or other correspondence was received within that time. Therefore, the AOJ informed the Veteran that the decision was final and closed out his appeal. Thereafter, the Veteran initiated the current appeal. In April 2017, he revoked his power of attorney for DAV after learning his appeal only pertained to the timeliness of a Substantive Appeal. He contended that a waiver of timeliness should be granted as he requested a DRO hearing within 60 days of the SOC. He also contended that the waiver should be granted because he asked his prior representatives to request a DRO hearing on multiple occasions, but that request was not fulfilled by the representatives. Initially, reading his correspondence liberally, the November 17, 2015 request for a DRO could be considered a Substantive Appeal as a statement in lieu of a Form 9. See Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed. Cir. 2011) (holding that a letter that identified the issue on appeal was sufficient); see also 38 C.F.R. § 19.22 (specifically stating that correspondence with the necessary information is an acceptable alternative to a Form 9). However, the request was not received within 60 days of the SOC as he reported. Rather, it was received 83 days after the SOC was sent to the Veteran. Further, it was received 18 days after a year had tolled from the November 4, 2015 notification letter. Importantly, although the document was signed November 17, 2016, the operative date for timeliness is the date it was received by VA. See 38 C.F.R. § 19.32. Regardless, the November 17, 2016 date is also 13 days after the expiry of the later time deadline. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). In this regard, the Veteran does not contend that he or his representative did not receive the notification of the decision or the SOC. Rather, he confirmed that he received these documents on or about November 4, 2015 and September 1, 2016, respectively. See April 2017 Statement in Support of Claim. Thus, there is no indication that the deadlines should have been tolled. It is also acknowledged that under 38 C.F.R. § 19.53, the period for filing a Substantive Appeal may be extended for good cause. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal. Id. Here there is no evidence in the record nor argument from the Veteran that he filed an extension request prior to the expiry of the deadline. Alternatively, an extension of time limit may be requested under 38 C.F.R. § 3.109(b) for good cause shown. In such instances, the action required of the claimant 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 than it was. In the instant case, reading his correspondence liberally as a statement in lieu of a Form 9, the Veteran has not provided good cause as to why he could not file the appeal within the designated time limits. Specifically, the Veteran reported that he asked his representative to request a DRO hearing with the filing of his initial claim for benefits. This is not supported in the record. Also, the ultimate disposition of this case rests upon receipt of a substantive appeal after the issues of the SOC or within a year of the rating decision. Further, the Veteran claimed he continually asked his representatives to request a DRO hearing, but one was never requested for an unknown reason. While the Board is sympathetic to the Veteran's argument that his representative did not follow his instructions, the Veteran acknowledged in the April 2017 DRO hearing that he understood he was free and able to contact VA on his own behalf through the pendency of the appeal. Notably, the Veteran, while still represented by DAV, did request a DRO hearing on his own accord in November 2016. Moreover, the Veteran's representative included a letter with the November 2015 NOD specifically declining the DRO process. While the Veteran reported this representative was not following his express wish of testifying at a DRO hearing, he exercised his right to revoke and change representation, availing himself to the proper remedy when unsatisfied with a representative. Importantly, the Veteran was able at all times to contact VA on his own accord and file requests on his own behalf. The Board also acknowledges that an untimely Substantive Appeal is not a jurisdictional bar. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, the instant case is distinguishable from the holding in Percy. Importantly, in that case, a Form 9 was actually filed, albeit untimely. Id. Nonetheless, as described above, liberally reading the November 17, 2016 correspondence as a Substantive Appeal, it remains distinguishable. The Court of Appeals for Veterans Claims noted that the operative language of 38 U.S.C. § 7105(d)(3) allowed that VA "may close the case for failure to respond after receipt of the [SOC]," but such conditional language allows VA to waive, either implicitly or explicitly the timelines for filing. Id, at 42. In Percy, the Veteran filed an untimely Form 9, but VA accepted the Form 9 and continued to treat the issue as if the Form 9 was timely. In contrast, in the instant case, the Veteran did not file a Form 9, and importantly, even with the DRO hearing request, the AOJ did not treat the claim as if it was in appellate status. Rather, the AOJ closed the issue, and the Veteran did not have reason to believe it was on appeal. Thus, there was no implicit waiver of the timeliness of the appeal. Therefore, Percy is not controlling in this instance, as the material facts of the case differ, and the Veteran did not file a timely Substantive Appeal to the September 2016 SOC. Although the Board is sympathetic to the Veteran's claim, and argument that his representatives did not request his DRO as he wished, the law, procedural development and evidence do not support the Veteran's claim. In this regard, the Veteran did not file a timely Substantive Appeal within one year of the November 4, 2015 notification of the October 2015 decision, or within 60 days of the September 1, 2016 SOC. Therefore, his November 17, 2016 request for a DRO hearing cannot be accepted as a timely Substantive Appeal, and his appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.