Citation Nr: A21019809 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 211004-189792 DATE: December 13, 2021 ORDER Entitlement to an effective date of June 28, 2017, but no earlier, for the award of service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. On June 28, 2017, the Veteran filed a claim of entitlement to service connection for sleep apnea. The claim was denied pursuant to an August 2017 rating decision and in September 2017 the Veteran filed a timely Notice of Disagreement (NOD) with that decision. 2. On March 7, 2019, the Department of Veterans Affairs (VA) issued a Statement of the Case (SOC) addressing the August 2017 denial of entitlement to service connection for sleep apnea. The Veteran and his Veterans Service Organization (VSO) representative did not file a substantive appeal or opt into VA's modernized appeals system within 60 days of the March 7, 2019 SOC. 3. On September 24, 2020, the Veteran filed a motion to extend the time to opt into VA's modernized appeals system and concurrently filed a VA Form 20-0995. 4. The Veteran had good cause for failing to timely opt into VA's modernized appeals system or request an extension of time to do so within 60 days of March 7, 2019 SOC, and his September 24, 2020 VA Form 20-0995 could not have submitted sooner than it was. 5. The Veteran's entitlement to service connection for OSA had manifested as of June 28, 2017. CONCLUSION OF LAW The criteria for entitlement to an effective date of June 28, 2017, but no earlier, for the award of service connection for OSA are met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.109, 3.155, 3.160, 3.400, 3.2400, 3.2500. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to August 1993. In September 2021, an Agency of Original Jurisdiction (AOJ) of the VA issued the rating decision on appeal, which assigned an effective date of September 24, 2020 for the award of service connection for OSA. The Veteran filed a timely NOD and elected the Direct Review Docket. See October 2021 VA Form 10182. The Veteran asserts that he is entitled to an effective date relating back to the claim of entitlement to service connection for OSA that he filed in 2017. He asserts that he is entitled to this effective date because his former VSO representative erroneously notified the Veteran that all necessary actions had been taken with respect to his September 2017 appeal and if he had not been erroneously informed he would have perfected that appeal. See October 2021 Correspondence; Attachment to February 2021 VA Form 10182. As discussed below, the Board construes the Veteran's September 2020 correspondence as a motion out of time for an extension of time to file an election to opt into VA's modernized appeals system and continue his challenge of the adverse August 2017 rating decision. As there is good cause shown for this extension as well as the delay in requesting the extension, and as the document required to continue his challenge of the adverse decision was submitted concurrently with the motion for an extension, the motion is granted. Thus, this appeal relates back to the June 28, 2017 claim, and accordingly that is the correct effective date of service connection. Applicable Law and Regulations The effective date of an award of VA compensation that is based on an original claim or claim reopened after final disallowance shall be assigned in accordance with the facts found, but an effective date will not be assigned that is earlier than the date of receipt of the application for compensation. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). VA's modernized appeals system went into effect on February 19, 2019. The system in effect prior to modernization will be referred to as the "legacy" appeals system. The appeal filed in September 2017 was a legacy appeal. Appellants under VA's legacy appeals system may elect to opt into the modernized appeals system under certain circumstances, including when an SOC is issued on or after February 19, 2019 and an appellant submits an election within the time to submit a Substantive Appeal (typically 60 days). Documents that may be accepted as elections into the modernized appeals system include VA Form 20-0995 (Supplemental Claim) and VA Form 10182 (Notice of Disagreement). See 38 C.F.R. §§ 3.2400, 19.2. An appeal consists of a timely filed NOD and, after an SOC has been furnished, a timely filed Substantive Appeal. See 38 C.F.R. § 19.20. A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. See 38 C.F.R. § 19.22. Except in simultaneously contested claims, a 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 time to file an NOD (normally, one year from the date a rating decision is issued). See 38 C.F.R. § 19.52. A legacy claim is considered finally adjudicated when the time to file an NOD expires or it is disposed of on appellate review. 38 C.F.R. § 3.160. The AOJ may close an appeal without notice to an appellant or his or her representative for failure to respond to an SOC within the period allowed. See 38 C.F.R. § 19.32. The time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary 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. 38 C.F.R. § 3.109. Factual and Procedural Background On June 28, 2017, the Veteran filed a claim of entitlement to service connection for sleep apnea. In August 2017, the AOJ denied the claim. In September 2017, the Veteran filed a timely NOD and thus initiated an appeal of the August 2017 denial. On March 7, 2019, the AOJ issued an SOC addressing entitlement to service connection for sleep apnea. Thus, the Veteran had 60 days from March 7, 2019 to submit a Substantive Appeal. Furthermore, since the March 7, 2019 SOC was issued after the effective date of VA's modernized appeals system, the Veteran could opt into the modernized appeals system by submitting an election within 60 days. VA did not receive a Substantive Appeal or election into the modernized system within 60 days. 38 C.F.R. § 19.52. Instead, in April 2020 the Veteran's VSO representative submitted a VA Form 10182 (Notice of Disagreement) that requested Board Review of a decision purportedly issued on March 7, 2020 that addressed entitlement to service connection for sleep apnea. In July 2020, the Board notified the Veteran that his April 2020 NOD was untimely. On September 11, 2020, the Board sent the Veteran correspondence thanking him for his June 21, 2020 telephone inquiry with VA's national call center. The Board noted that this inquiry was received at the Board on August 4, 2020 and explained that the appeal initiated in September 2017 had been closed due to the failure to file a timely Substantive Appeal. On September 24, 2020, the Veteran submitted a statement that he had communicated with the handler assigned to his case by his VSO representative on a weekly basis when he initiated his appeal in September 2017 and was told that "everything had been submitted" and that he was to stand by for a hearing. He reported that in January 2020 he was told that the hearing official was coming to the Veteran's local VA facility and he was first in line for a hearing. He indicated that in April 2020, he was told that he should stand by for a virtual hearing. Subsequently, he was unable to contact his VSO representative and his next communication was with VA's national call center, who informed him that his appeal had been closed. The Veteran was then assigned a new case handler by his VSO representative, who informed the Veteran that his prior case handler had "put the incorrect date on [his] appeal" and no longer worked for the VSO. In light of this chain of events, the Veteran requested, among other things, "adjustment of my date of appeal submission" to September 2017, i.e., the date of the NOD that gave rise to his closed legacy appeal. See September 2020 VA Form 21-4138. Critically, the Veteran concurrently submitted a completed VA Form 20-0995 (Supplemental Claim) indicating his request that VA review his appeal date and act on his September 2017 appeal. The Veteran reiterated and amplified his argument in February 2021 and October 2021, although all relevant facts were of record as of September 24, 2020. See also February 2021 VA Form 10182 and Attachment; October 2021 VA Form 10182 and Attachment. In January 2021, the AOJ confirmed and continued the denial of entitlement to service connection for OSA. The Veteran filed a timely appeal of that decision. In August 2021, the Board granted entitlement to service connection for OSA. The AOJ implemented the Board's award in a September 2021 rating decision and assigned an effective date of service connection of September 24, 2020, the date that the Veteran submitted his VA Form 20-0995. The Veteran then filed this appeal. Application of Law to Facts The Board previously determined that the Veteran's OSA was incurred in and had its onset during service. See August 2021 Board Decision at 1, 5. Thus, the key question for the Board relates to the correct date of claim. Furthermore, that question turns on whether the August 2017 rating decision that denied the June 28, 2017 claim is final. The Veteran does not dispute that neither he nor his VSO representative filed a Substantive Appeal or election into VA's modernized appeals system within 60 days of the issuance of the March 7, 2019 SOC. Instead, he asserts that this omission was due to an error by his VSO representative, and requests that the Board allow benefits based on his June 28, 2017 claim. See September 24, 2020 VA Form 21-4138. The Board liberally construes this request as a motion out of time for an extension of time to submit a response to the March 7, 2019 SOC. The regulation governing extensions of time, 38 C.F.R. § 3.109(b), does not explicitly address whether it applies to elections into VA's modernized appeals system following the issuance of an SOC. Indeed, the regulation in its current form predates VA's modernized appeals system. However, the time limits at issue in this case mirrors the time to file a Substantive Appeal under VA's legacy appeals system. The United States Court of Appeals for Veterans Claims has determined that 38 C.F.R. § 3.109(b) is "facially applicable to a request for an extension of time to challenge an adverse [AOJ] decision by filing a Substantive Appeal." See Morgan v. Principi, 16 Vet. App. 20, 25 (2002). The Board acknowledges that the relevant regulation governing elections to opt into the modernized appeals system states that the election must be filed "within the time allowed for filing a substantive appeal under 38 C.F.R. § 19.52(b) and other applicable provisions in part 19 of this chapter." 38 C.F.R. § 3.2400(c)(2). The reference to "other applicable provisions" could imply that 38 C.F.R. § 19.53 applies to elections to opt into the modernized appeals system. Section 19.53 provides that an extension of the 60-day period to file a Substantive Appeal must be made prior to the expiration of that period. However, as 38 C.F.R. § 19.53 was created in connection with the implementation of regulations governing VA's modernized appeals system, the Board interprets the silence in that section as a decision that § 19.53 is inapplicable to elections into the modernized appeals system. Indeed, the sentence containing the reference to "other applicable provisions" of chapter 19 is not limited to the time limits to file an election. Moreover, 38 C.F.R. § 19.2 explicitly discusses VA's modernized appeals system and the applicability of the time limits to file a Substantive Appeal set forth in § 19.52(b), and thus the lack of any reference to elections into the modernized appeals system in section 19.53 demonstrates that that regulation does not apply to such elections and that VA knew to reference the modernized appeals system in chapter 19 when it wished to do so. Thus, as VA regulations permit the filing of motions out of time for an extension of time to file an election into VA's modernized appeals system in response to an SOC, the next question is whether good cause is shown for the extension, as well as why the request for an extension was not filed during the original time limit and was not filed sooner than it was. In this regard, as the Veteran filed a completed VA Form 20-0995 (Supplemental Claim) concurrently with his motion for an extension of time, that aspect of 38 C.F.R. § 3.109(b) is satisfied. The record shows that the error by the Veteran's VSO representative was most likely due to a mistake in entering information into an appeals calendar system. The Veteran credibly reported that this is what he was told by his new case handler with the VSO representative. Moreover, this is corroborated by the "date of decision" being contested that was listed on the April 2020 VA Form 10182. Had that indeed been the date of the SOC in question, the April 2020 VA Form 10182 would have been a timely election into VA's modernized appeals system. Moreover, the nature of this error the correct month and day, but an incorrect year is consistent with an inadvertent entry into a calendaring system where the entry of a date is performed by selecting a date from a calendar displayed on a computer screen, i.e., where the date is selected by using a mouse and cursor instead of typing in the date. Moreover, the Veteran credibly reported his diligence in investigating the status of his appeal, and this is corroborated by the record. In June 2021, he inquired into the status of his appeal with VA's national call center, prior to the date that the Board notified him that it had rejected his April 2020 VA Form 10182. Moreover, he filed his motion for an extension on September 24, 2020, less than two weeks after the September 11, 2020 notice from the Board was mailed to the Veteran explaining that his appeal was rejected. This delay is reasonable under the circumstances prevailing in September 2020, especially as some time must be allowed for transit in the mail. Insofar as the Veteran reported that the call center also told him that his appeal was closed, the Board sees no error in the Veteran's decision to wait until his inquiry had been addressed by VA's subject matter experts, i.e., the Board. In sum, the delay in filing the election into the modernized appeals system was the result of error by the Veteran's non-attorney representative, and the Veteran diligently investigated the status of his appeal and requested relief as soon as he ascertained that the error had occurred and determined that it could not be corrected informally. The Veteran's reliance on the erroneous statements of the case handler assigned by his VSO representative is good cause for his failure to file a timely election, as the handler stated that all actions had been completed that were necessary for the Veteran's appeal and the Veteran's reliance on these statements was reasonable. Moreover, the Veteran's ignorance at the time of the true state of his appeal due to his representative's erroneous statements is good cause for his failure to file a motion for an extension within the 60-day period. Finally, the Veteran could not have sooner filed the VA Form 20-0995 that was submitted on September 24, 2020 given that the Board did not mail a response to his inquiries until September 11, 2020. Accordingly, as the criteria set forth in § 3.109(b) are met, the Veteran's September 24, 2020 motion for an extension out of time to act to challenge the adverse August 2017 rating decision is granted. Finally, the Board emphasizes that the key question in this matter is not the validity of the election submitted in response to the March 7, 2019 SOC. Instead, the key question is whether an extension out of time to act to continue the Veteran's challenge of the adverse August 2017 rating decision is warranted. It is, and thus the Veteran's pending appeal did not lapse and the August 2017 rating decision never became final. Accordingly, the applicable date of claim is June 28, 2017. As entitlement to service connection for OSA had manifested by that date, an effective date of June 28, 2017 for the award of service connection for OSA is warranted and the appeal is granted. Entitlement to an effective date earlier than June 28, 2017 for the award of service connection for OSA is denied, as the Veteran does not assert, and the record does not show, that an even earlier effective date is warranted. The events giving rise to this appeal are regrettable, and the Board appreciates that the accompanying uncertainty and frustration came at a particularly unfortunate time. The Board apologizes for any inconvenience this may have caused the Veteran in pursuing this matter, and is grateful to the Veteran for his lengthy and distinguished service to our country. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.