Citation Nr: A21019481 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 201014-133555 DATE: December 7, 2021 ORDER The appeal as to the timeliness of the substantive appeal received on August 17, 2020 is granted. FINDING OF FACT The Veteran's April 2020 request for extension following the February 2020 Statement of the Case (SOC) had good cause. CONCLUSION OF LAW The criteria for a timely substantive appeal filed after the February 2020 SOC, to include whether request for extension was for good cause, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.302, 20.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1967 to January 1970 and from December 1981 to May 1999, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 decision from the Regional Office (RO) of the Department of Veterans Affairs (VA). In the October 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The appeal as to the timeliness of the substantive appeal received on August 17, 2020 is granted. The Veteran contends that he completed a timely substantive appeal following the February 2020 issuance of the SOC for the claims of entitlement to a disability rating in excess of 10 percent for hypothyroidism, entitlement to a compensable disability rating for hypertension, entitlement to service connection for erectile dysfunction, and entitlement to service connection for onychomycosis on the toes. The Board finds that the Veteran has shown good cause for request for extension to submit the VA Form 9 and subsequently completed a timely appeal. Whether a substantive appeal has been filed on time is an appealable issue. 38 C.F.R. § 19.34. If the claimant protests an adverse determination made by the AOJ with respect to timely filing of a substantive appeal, the claimant will be issued an SOC. Id. The substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the 1-year period from the date of the notification of the determination being appealed. 38 C.F.R. § 20.302. An extension of the 60-day period for filing a substantive appeal may be granted 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 and filed with the VA office from which the claimant received notice of the determination being appealed (unless notice has been received that the records have been transferred to another VA office). A denial of a request for extension may be appealed to the Board. 38 C.F.R. § 20.303. Turning to the evidence, the Veteran filed the claims on appeal in July 2018. The AOJ denied the claims in September 2018 and October 2018 rating decisions. The Veteran filed a notice of disagreement (NOD) on October 27, 2018. Following the NOD, the AOJ issued two SOCs, one on February 3, 2020 and one on February 7, 2020, addressing the claims. The Veteran sent correspondence, postmarked April 7, 2020, requesting an extension of time for filing of his substantive appeal. The Veteran indicated in this correspondence that his representative, who had been assisting him in the appeal to the Board, was no longer working with the Veteran, indicating he needed more time to find a new representative. The April 7, 2020 correspondence requesting an extension for filing of the substantive appeal went unanswered by VA. Subsequently, the Veteran filed the VA 9 form, his substantive appeal, on August 17, 2020. The AOJ sent correspondence to the Veteran dated August 18, 2020 stating that the Veteran had not perfected a timely appeal of his claims due to the receipt of the VA Form 9 more than 60 days following the issuance of the February 2020 SOCs. After review of the record, the Board finds that the Veteran has perfected a timely appeal for the claims mentioned above. The Veteran requested an extension in writing prior to the expiration of the time limit of filing a substantive appeal. The Veteran stated he needed additional time before filing his substantive appeal due to a change in representation. This request for an extension went unanswered. Because the Veteran requested additional time to obtain new representation prior to filing his substantive appeal, the Board finds the request for extension to be for good cause. Therefore, the Veteran has perfectly a timely appeal. As the August 2020 VA Form 9 has been accepted as timely, the appeal will be reinstated. Additionally, as the Veteran requested a hearing for that appeal, the Board will schedule such hearing through separate correspondence to the Veteran and his representative. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.