Citation Nr: A21019666 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 200522-106794 DATE: December 9, 2021 ORDER The appeal to establish that a Substantive Appeal of a January 9, 2019 rating decision was timely filed, is granted. FINDINGS OF FACT 1. On January 11, 2019, a Department of Veterans Affairs (VA) Regional Office (RO) mailed notification to the Veteran of its January 9, 2019 rating decision which granted service connection for multiple disabilities (bilateral pes planus and plantar fasciitis; obstructive sleep apnea (OSA); chronic allergic rhinitis; chronic sinusitis with nasopharynx and uvula enlargement; loss of smell; and loss of taste) and awarded eligibility to Dependents' Educational Assistance, each effective September 3, 2018. 2. A timely notice of disagreement (NOD) was received in August 2019. 3. A corresponding statement of the case (SOC) addressing the matters was issued by the RO on February 21, 2020. 4. A VA Form 9 (formal appeal) was received by the VA Claims Intake Center on May 4, 2020; the Form 9 includes a written notation that reads, "Please provide appealed claim extension time due to COVID relief." CONCLUSION OF LAW The Veteran's Substantive Appeal of a January 9, 2019 rating decision in the matters of the effective dates assigned for service connection for bilateral pes planus and plantar fasciitis, OSA, chronic allergic rhinitis, chronic sinusitis with nasopharynx and uvula enlargement, loss of smell, loss of taste, and for eligibility to Dependents' Educational Assistance may be accepted as timely. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.110, 19.30, 20.101, 20.200, 20.202. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from May to July 1997, and from March 2000 to September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 11, 2020 VA decisional letter which notified the Veteran that his VA Form 9 received on May 4, 2020 was not timely to a February 21, 2020 Statement of the Case (SOC). He timely appealed the decisional letter via a May 22, 2020 VA Form 10182 and requested Direct Review by the Board. Therefore, the Board may only consider the evidence of record at the time of the May 11, 2020 decisional letter on appeal. 38 C.F.R. § 20.301. The appeal to establish timeliness of a substantive appeal of a January 9, 2019 rating decision is granted. Legal Criteria Under 38 U.S.C. § 7105, an appeal to the Board must be initiated by a timely filed NOD in writing and completed, after an SOC has been furnished, by a timely filed Substantive Appeal. The Substantive Appeal can be set forth on a VA Form 9 (Appeal to the Board of Veterans' Appeals) or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to errors of fact or law made by the RO. 38 C.F.R. §§ 20.200, 20.201, and 20.202. To be considered timely, a Substantive Appeal must be filed within 60 days from the date that the RO 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. 38 U.S.C. § 20.202. 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. § 20.110. Additionally, an extension of time for filing a Substantive Appeal may be granted on motion filed prior to the expiration of the time limit described above. 38 C.F.R. § 20.203. If the claimant fails to file a Substantive Appeal in a timely manner, and fails to timely request an extension of time, he or she "is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). Factual Background On January 11, 2019, the RO mailed notification to the Veteran of its January 9, 2019 rating decision which granted service connection for multiple disabilities (bilateral pes planus and plantar fasciitis; OSA; chronic allergic rhinitis; chronic sinusitis with nasopharynx and uvula enlargement; loss of smell; and loss of taste) and awarded eligibility to Dependents' Educational Assistance, each effective September 3, 2018. A timely NOD was received in August 2019. On February 21, 2020, the RO issued a corresponding SOC addressing the matters. A March 12, 2020 Report of General Information notes the Veteran's request for an appointment to come into the RO and view his claims file. The memorandum does not include an extension request to file a substantive appeal. On May 4, 2020, a VA Form 9 (formal appeal) was received (via fax) by the VA Claims Intake Center; the Form 9 includes a written notation that reads, "Please provide appealed claim extension time due to COVID relief." A May 11, 2020 VA letter notified the Veteran that his Form 9 received on May 4, 2020 was untimely. It explained that he had no later than one year following notification of the adverse decision he is appealing or 60 days from the date the SOC was mailed, whichever is later. It then erroneously informed him that he had until January 11, 2020 to submit his substantive appeal. [Although one year from the January 11, 2019 notification letter is indeed January 11, 2020, application of the controlling (legacy appeal) regulations should have afforded the later deadline date of April 21, 2020, which is 60 days after the February 21, 2020 SOC was mailed.] The instant appeal arises from that determination. On May 22, 2020, VA received the Veteran's VA Form 10182. He identified the date of the decision he wished to appeal as May 11, 2020, and wrote, "Extension Request Under COVID 19...Ability to File Appeal Under COVID 19." [The Board has interpreted the Form as expressing disagreement with the May 11, 2020 decisional letter, rather than an extension request to file a (separate VA Form 10182) appeal.] The Veteran included a copy of an internet news release from the VA Office of Public and Intergovernmental Affairs (notably on a www.va.gov/opa webpage). The article is entitled, "VA extends financial, benefits and claims relief to Veterans." It explained that VA announced on April 3, 2020, a number of actions to provide veterans with financial, benefits, and claims help amid VA's COVID-19 response. Critical to the instant appeal is a notation that the "benefits and claims relief actions include giving Veterans the option to submit their paperwork late for the following actions" including "perfecting claims" and "submitting Substantive Appeals." It continues to explain that "Veterans requesting claim extensions can simply submit them with any late-filed paperwork and Veterans do not have to proactively request an extension in advance." The Veteran also submitted a typed statement which reiterates that the VA website explains he did not need to request an extension in advance, and that VA did not specify when the relief period would end. [A search found that the VA press release webpage is still active on the internet.] Analysis As was noted, the Veteran's Substantive Appeal was not received until May 4, 2020. This was more than one year after the issuance of the January 11, 2019 rating decision notification letter, and more than 60 days after the February 21, 2020 SOC. There is no document from him in the file received before May 4, 2020 that could be construed as a Substantive Appeal or as a request for an extension. Pursuant to the Legacy appeal system regulations then in place, the Veteran's Form 9 was untimely by 13 days (less than two calendar weeks). However, upon review of the record, including the (pro se) Veteran's argument, the Board finds the Veteran's substantive appeal was timely filed. The Veteran's May 4, 2020 VA Form 9 contains (in the top right corner) a request for extension of time to file the appeal due to COVID relief; hence, his extension request was included/submitted with his Substantive Appeal. Furthermore, the Board notes that his Substantive Appeal was submitted within two months after the dates on which the World Health Organization declared COVID-19 a pandemic and the U.S. President declared COVID-19 a National Emergency (i.e., during the infancy of the pandemic in the United States, when many offices, buildings, workplaces, and schools were closed). The Board acknowledges that the copy of the news release from the VA Office of Public and Intergovernmental Affairs, "VA extends financial, benefits and claims relief to Veterans," was added to the claims file during a period of time when new evidence was not allowed (under the Direct Review appeal lane). However, considering Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), and that the article existed on a VA website prior to the May 11, 2020 notification letter on appeal [was constructively of record], the Board finds that, as it pertains to the instant appeal, VA had actual knowledge and/or constructive possession of the article during the evidentiary period for consideration, and the article's guidance has been considered by the Board in reaching its conclusion herein. [As noted above, the article states "Veterans requesting claim extensions can simply submit them with any late-filed paperwork and Veterans do not have to proactively request an extension in advance" (emphasis added).] In light of the receipt of the Substantive Appeal less than two weeks after the traditional 60-day deadline (following issuance of the SOC), the contemporaneous inclusion of an extension request based on Covid-19 relief on the VA Form 9, and the argument made by the Veteran (with citation to the applicable VA news release pertaining to extensions of deadlines amid VA's COVID-19 response), the Board finds that the evidence reflects a continuing pursuit of his appeal during the earliest stage of the pandemic, and does not suggest an intent to abandon the claims by failure to file a Substantive Appeal. Such a finding is consistent with the importance of systemic fairness and the uniquely pro-claimant veterans' benefits system. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); see also Sullivan v. McDonald, 815 F.3d 786, 791 (Fed. Cir. 2016). Accordingly, the Board finds that the Veteran's substantive appeal perfecting his appeal seeking earlier effective dates for the awards of service connection for bilateral pes planus and plantar fasciitis, OSA, chronic allergic rhinitis, chronic sinusitis with nasopharynx and uvula enlargement, loss of smell, and loss of taste, as well as entitlement to Dependents' Educational Assistance benefits was timely filed. 38 C.F.R. § 20.101. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.