Citation Nr: 21077232 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-18 915 DATE: December 29, 2021 ORDER Entitlement to an extension of time to file a substantive appeal to a November 2002 Statement of the Case (SOC) is granted. Entitlement to an effective date of February 23, 2001 for the award of service connection for a congenital kidney disorder with kidney removal on the basis of a pending claim is granted. FINDINGS OF FACT 1. In an October 2001 rating decision, the RO denied the Veteran's petition to reopen his claim for service connection for a kidney disability. The Veteran submitted a notice of disagreement and, on November 4, 2002, the RO issued a SOC on the issue. 2. The postmark of the Veteran's letter requesting an extension of time to file his substantive appeal received by the RO is not of record; the letter bears a VA mailroom receipt stamp dated January 8, 2003 and is therefore presumed to have been received on December 31, 2002, which is timely. 3. The Veteran presented good cause for his request for an extension of 60 days to file his substantive appeal. 4. The substantive appeal, received on February 13, 2003, was timely filed. 5. An unappealed March 1982 rating decision denied entitlement to service connection for a kidney disorder, and an October 1983 VA notice letter denied reopening the claim. 6. The RO received a petition to reopen the claim for service connection for a kidney disability on February 23, 2001, which was not received within one year of separation from service and was after the date when entitlement arose. 7. The October 2001 rating decision, denying entitlement to service connection for a kidney disorder, did not become final, and his claim was ultimately granted in a December 2014 rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extension of time to file a substantive appeal on a November 2002 Statement of the Case have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.51, 19.52, 19.53. 2. The criteria for an effective date of February 23, 2001, for the award of service connection for congenital kidney disorder with kidney removal have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to December 1959 and from October 1961 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 decision, the Board denied the Veteran's claim for entitlement to an effective date earlier than July 9, 2013, for the award of service connection for a congenital kidney disorder with kidney removal, to include as a result of clear and unmistakable error (CUE) in a prior rating decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 Memorandum Decision, the Court dismissed the issue of entitlement to an effective date earlier than July 9, 2013, for the award of service connection for a kidney disorder on the basis of CUE as abandoned and affirmed the portion of the Board decision denying an effective date earlier than July 9, 2013, for the award of service connection for a kidney disability on the basis of 38 C.F.R. § 3.156(c). The Court vacated the portion of the decision denying an effective date earlier than July 9, 2013, for the award of service connection for a kidney disability on the basis of a pending claim and remanded the vacated matter to the Board for further proceedings consistent with the decision. In September 2019, the Board, finding that the Veteran's January and April 2003 letters could be construed as a notice of disagreement (NOD) with the denial of the request for an extension of time to file a substantive appeal, remanded the issue regarding entitlement to an extension to file a substantive appeal to a November 2002 SOC so that the RO could provide the Veteran and his representative a SOC that addressed this issue. The Board also remanded the issue regarding an earlier effective date for the award of service connection as inextricably intertwined with the issue of entitlement to an extension of time to file a substantive appeal. The Board instructed that only if the Veteran appealed the issue of entitlement to an extension of time to file a substantive appeal to a November 2002 Statement of the Case, should the issue be returned to the Board. The RO issued the requested SOC in July 2020 and the Veteran perfected the appeal, requesting a videoconference hearing on the issues. Stegall v. West, 11 Vet. App. 268 (1998). As a result of his request for a hearing, the record reflects that the Veteran was scheduled for a September 2021 Board hearing; however, in September 2021, the Veteran withdrew his hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d), (e). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to an extension of time to file a substantive appeal on a November 2002 Statement of the Case is granted. The Veteran contends that his February 2001 claim for right kidney failure remains pending because he timely filed a request for an extension of time to file a Substantive Appeal and consequently filed a timely Substantive Appeal. He maintains that, to this end, the Board erred by failing to consider (1) the postmark date of his extension request to determine whether it was timely, (2) whether he had good cause for the request, or (3) whether equitable tolling would have excused his late request if deemed untimely. The Board's authority to review an adverse Agency of Original Jurisdiction (AOJ) decision is initiated upon a claimant's submission of a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. §§ 7105(a); 38 C.F.R. § 20.200. 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. Failure to file a substantive appeal within the allotted time period does not automatically deprive the Board of jurisdiction to review a case. See generally Beryl v. Brown, 9 Vet. App. 24 (1996); Rowell v. Principi, 4 Vet. App. 9 (1993). This leniency, in part, is because of the existing statutory and extensive judicial precedent repeatedly characterizing the veterans' benefits system as "uniquely pro-claimant" and even paternalistic. See, e.g., Nolen v. Gober, 222 F.3d 1356, 1361 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). Further, while a claim is pending either before the RO or the Board, the relationship between VA and an appellant is non-adversarial as well as pro-claimant. See Forshey v. Principi, 284 F.3d 1335, 1354-55 (Fed. Cir. 2002) (en banc). A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 19.52(b)(1). An extension of the 60-day period for filing a VA Form 9 may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. The request for extension must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed, unless notice has been received that applicable records have been transferred to another Department of Veterans Affairs office. See 38 C.F.R. § 19.53. In an October 2001 rating decision, the RO denied the Veteran's February 2001 petition to reopen his claim for service connection for a kidney disability. On November 4, 2002, the RO issued a SOC denying the petition to reopen the claim for service connection for a kidney disorder. He was notified that his appeal must be filed within 60 days from the date of the letter or within the remainder, if any, of the one year period from the date of the letter notifying him of the action that he appealed. The Veteran submitted a letter asking for a 60 day extension to complete a Substantive Appeal, indicating that he needed more time to understand the SOC; his letter, although sent to the address of the RO that issued the October 2001 rating decision, was written to the attention of a representative for Disabled American Veterans (DAV), who received the letter on December 16, 2002. In a letter dated December 19, 2002 to the Veteran, the DAV representative indicated that the Veteran's letter was received on December 16, 2002 and was taken to his appointed representative at Paralyzed Veterans of America (PVA). The record reflects that the Veteran's December 2002 letter was received by VA on January 8, 2003. The Veteran contends that either (1) his letter was postmarked on December 13, 2002, the date of the letter and the date that he mailed the letter, or (2) his letter was not postmarked, and therefore, five days prior to January 8, 2003, excluding weekends and legal holidays, yields a presumptive December 31, 2003 postmark date. He maintains, however, that his request was timely either way. VA uses a statutory postmark rule to determine timely receipt of submissions. See 38 U.S.C. § 7105; see also 38 C.F.R. § 20.110. In this regard, 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. § 20.302(a). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 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(a), (b). Here, the Board finds that the Veteran's request for extension was received by his representative on approximately December 19, 2001, as this is the date in which the DAV representative indicated that he had delivered the letter to the Veteran's appointed representative. The record reflects that the Veteran's request for an extension of time to file his substantive appeal was subsequently received by the VA Mail Room on January 8, 2003. As there is no postmark on the letter indicating when the Veteran's authorized representative mailed the Veteran's extension request, the Board finds that the Veteran's letter was presumed to have been postmarked on December 31, 2002. As the Board, affording the Veteran the benefit of the doubt, finds that the Veteran's extension request was postmarked on December 31, 2003, the request for an extension of time to file a substantive appeal should be accepted as timely filed, regardless of when the letter was actually received. Additionally, the Board finds that the Veteran has presented good cause for his request for an extension of time to file his substantive appeal. The Veteran's December 2002 letter acknowledged that a reason for such a request was needed and indicated that he needed more time to understand the SOC. Thus, the Board finds that the Veteran presented good cause for his request for an extension of 60 days in which to file a substantive appeal. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds that an extension of time to file a substantive appeal on the November 2002 Statement of the Case is warranted. In light of this decision, the Board need not address the Veteran's additional contentions as they relate to the timeliness of his extension request. In light of the Board's decision to grant entitlement to an extension of time to file a substantive appeal herein, the Board finds that the Veteran's February 13, 2003 substantive appeal is also timely filed, as it was received within the 60-day extension timeframe. Therefore, the Board finds that the VA Form 9 received in February 2003 constitutes a timely substantive appeal as to the issues in the November 2002 SOC. 2. Entitlement to an effective date of February 23, 2001 for the award of service connection for a congenital kidney disorder with kidney removal on the basis of a pending claim is granted. The Veteran asserts that he is entitled to an effective date earlier than July 9, 2013 for the grant of service connection for a kidney disability because he has had an appeal pending since February 2001. Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The "date entitlement arose" has been interpreted to mean the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In cases such as this, when service connection is granted based on a claim that has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 16 Vet. App. 244 (2002). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication indicating intent to apply for one or more benefits. An informal claim must also be in writing. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Szemraj v. Principi, 357 F.3d 1370 (2004). VA is required to look to all communications from the veteran, which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of receipt is the date when a claim, information or evidence was received at VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1(r). The Veteran filed his initial claim for service connection for right kidney removal in March 1981; the claim was denied in July 1981. After receiving new evidence, a March 1982 VA rating decision reopened the claim for a kidney condition and denied service connection. The Veteran was notified at his address of record, but he did not appeal. In September 1983, the Veteran submitted correspondence, in essence, requesting that his claim be reopened. A VA correspondence dated in October 1983 notified the Veteran that no action would be taken on his claim because he had not presented new or material evidence. He did not appeal this decision. The next correspondence received from the Veteran was on February 23, 2001, in which the Veteran requested entitlement to service connection for right kidney failure. The claim was denied in an October 2001 rating decision, and as noted above, the Veteran appealed. After a review of the evidence, the Board finds that an effective date of February 23, 2001, but no earlier, for the grant of service connection for a kidney disorder is warranted. In this regard, the Veteran did not perfect an appeal for the March 1982 rating decision, denying service connection for a kidney disability, or the October 1983 decision to deny his petition to reopen his claim; therefore, the decision became final. Furthermore, the Board previously determined that there was no CUE with regard to the March 1982 rating decision nor any basis to award an earlier effective date based on 38 C.F.R. § 3.156(c), determinations which were not disturbed by the Court. Nevertheless, as the Veteran's substantive appeal was timely as to the November 2002 SOC, the October 2001 rating decision did not become final prior to his grant of service connection in December 2014. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) citing Tablazon v. Brown, 8 Vet. App. 359 (1995) (because the VA did not furnish the veteran with a statement of the case, he was unable to file a "formal appeal" with the Board and the RO rating decision did not become final); see also Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim will be considered to be pending if VA fails to provide proper notice of denial and right to appeal an adverse decision). With regards to the effective date, as noted above, generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). As the Veteran's February 23, 2001 claim was not received within one year of his separation in 1962, and the date of the claim was after the date in which entitlement arose, the effective date must be February 13, 2001. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). (Continued on the next page) In summary, given that the Veteran's February 23, 2001 claim remained pending, the claim was not received within one year of his separation in 1962, and the date of the claim was after the date in which entitlement arose, the Board finds that an effective date of February 23, 2001 for the grant of service connection for a kidney disorder with kidney removal is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.