Citation Nr: A21020154 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200527-88421 DATE: December 16, 2021 ORDER The appeal as to whether a substantive appeal (VA Form 9) was timely filed in response to an October 2019 statement of the case (SOC) is granted. FINDING OF FACT The December 2019 substantive appeal was postmarked on December 7, 2019, which was within 60 days of the mailing of the October 2019 SOC. CONCLUSION OF LAW The December 2019 substantive appeal as to the October 2019 SOC was timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 19.53, 20.305(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 decision issued by the Department of Veterans Affairs (VA), which determined that the Veteran's December 2019 substantive appeal in response to an October 2019 SOC was untimely filed. The Veteran was notified of the RO's decision in a letter dated April 16, 2020. On May 27, 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (NOD) and elected the "direct review" option. Direct review is the appeal option in which a Board decision is based on evidence of record at the time of the decision being appealed. Therefore, the Board will only consider evidence related to the period on appeal that was of record as of the date of the April 16, 2020 decision. The appeal as to whether a substantive appeal was timely filed in response to an October 2019 SOC is granted. The Veteran contends that his December 2019 substantive appeal was timely filed. In VA's legacy appeal system, appellate review is initiated by the filing of a notice of disagreement (NOD) and completed by the filing of a substantive appeal after an SOC has been furnished. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 19.53. A substantive appeal (VA Form 9 or equivalent) must be filed within 60 days from the date that the Regional Office (RO) mailed 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, whichever period ends later. 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. Where a written document is required to be filed within a specified time period, a response postmarked prior to expiration of the time limit will be accepted as timely filed. 38 C.F.R. § 20.305(a). In the event that the postmark is not of record, the postmark date will be presumed to be 5 days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a). By way of background, in a September 2015 rating decision, the RO granted service connection for right knee degenerative arthritis and assigned a 10 percent evaluation, effective April 4, 2014, continued the 20 percent rating for the Veteran's service-connected torn anterior cruciate ligament of the right knee, denied service connection for a low back disability, and denied service connection for a bilateral shoulder disability because the evidence submitted was not new and material. The Veteran initiated an appeal of the RO's decision by filing an NOD in October 2015. The RO issued an SOC on October 8, 2019. The Veteran's VA Form 9 was received by VA on December 23, 2019. The envelope was postmarked December 7, 2019. As noted above, where a written document is required to be filed within a specified time period, a response postmarked prior to expiration of the time limit will be accepted as timely filed. 38 C.F.R. § 20.305(a). Here, the Board finds that the Veteran's December 2019 VA Form 9 was timely filed, as the envelope was postmarked December 7, 2019, which is within 60 days of the mailing of the October 2019 SOC. As such, the appeal is granted, and the appeal of the underlying claims should be reinstated. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.