Citation Nr: A21020194 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200526-88417 DATE: December 17, 2021 ORDER The claim that the Veteran timely perfected her appeal to the June 12, 2015, rating decision that denied her application to reopen her claim of service connection for headaches, disorientation, and sleepiness, claims of service connection for residuals of second degree burns, a neck disability, tinnitus, and left index, middle and ring finger disabilities, as well as her claims for increased ratings for posttraumatic stress disorder (PTSD), a back disability, right knee instability, patellofemoral syndrome of the right knee, and a left knee disorder, hypertension, a left hip disability, a left shin splint, and a right shin splint is granted. The claim that the Veteran timely perfected her appeal to the July 13, 2015, rating decision that denied her claims for increased ratings for a right wrist disability, a left wrist disability, and a laceration to right thumb and fourth finger with residual loss of sensation and scarring is granted. FINDINGS OF FACT 1. Neither the October 18, 2018, nor the October 19, 2018, statement of the case (SOC) was mailed to the Veteran's representative last address of record. 2. The VA Form 9, Appeal to Board of Veterans' Appeals, received by the regional office (RO) in October 2019 timely perfected the Veteran's appeals as to the June 12, 2015, and July 13, 2015, rating decisions that, among other things, denied her application to reopen her claim of service connection for headaches, disorientation, and sleepiness, claims of service connection for residuals of second degree burns, a neck disability, tinnitus, and left index, middle and ring finger disabilities, as well as claims for increased ratings for PTSD, a back disability, right knee instability, patellofemoral syndrome of the right knee, and a left knee disorder, hypertension, a left hip disability, a left shin splint, and a right shin splint as well as her claims for increased ratings for a right wrist disability, a left wrist disability, and a laceration to right thumb and fourth finger with residual loss of sensation and scarring. CONCLUSION OF LAW The criteria for the Veteran to perfected her appeals as to the June 12, 2015, and July 13, 2015, rating decisions that, among other things, denied her application to reopen her claim of service connection for headaches, disorientation, and sleepiness, claims of service connection for residuals of second degree burns, a neck disability, tinnitus, and left index, middle and ring finger disabilities, as well as claims for increased ratings for PTSD, a back disability, right knee instability, patellofemoral syndrome of the right knee, and a left knee disorder, hypertension, a left hip disability, a left shin splint, and a right shin splint as well as her claims for increased ratings for a right wrist disability, a left wrist disability, and a laceration to right thumb and fourth finger with residual loss of sensation and scarring have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302(b), 20.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from February 2001 to December 2007 with service Southwest Asia from March 2003 to February 2004 and September 2005 to September 2006. This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system. See 84 Fed. Reg. 138 (Jan. 18, 2019). Specifically, the appeal comes before the Board from a March 2020 AMA rating decision. In a subsequent May 2020 VA form 10182, Decision Review Request: Board Appeal (AMA Notice of Disagreement), the Veteran elected the Direct Review Lane. 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 Timeliness Claims The Veteran and her representative claim that the appellant timely appealed the June 12, 2015, and July 13, 2015, rating decisions that, among other things, denied her application to reopen her claim of service connection for headaches, disorientation, and sleepiness, claims of service connection for residuals of second degree burns, a neck disability, tinnitus, and left index, middle and ring finger disabilities, as well as claims for increased ratings for PTSD, a back disability, right knee instability, patellofemoral syndrome of the right knee, and a left knee disorder, hypertension, a left hip disability, a left shin splint, and a right shin splint as well as her claims for increased ratings for a right wrist disability, a left wrist disability, and a laceration to right thumb and fourth finger with residual loss of sensation and scarring. Specifically, they claim, in substance, that because the RO never mailed the Veteran's representative notice of the October 18, 2018, and October 19, 2018, SOCs, the time to perfect her appeal as to the June 12, 2015, and July 13, 2015, rating decisions was tolled, and therefore her October 2019 VA Form 9, Appeal to Board of Veterans' Appeals, was timely. In this regard, the Board notes that an appeal "consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal." 38 C.F.R. § 20.200. The Substantive Appeal can be set forth on a VA Form 9 (Appeal to the Board of Veterans' Appeals) or in correspondence specifically identifying the issues appealed and setting out specific arguments relating to errors of fact or law made by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.202. To be considered timely, 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 one-year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302(b). VA regulations provide that notification for VA purposes is a written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). VA regulations also provide that the period for filing a Substantive Appeal may be extended for good cause. 38 C.F.R. § 20.303. The request for such an extension must be in writing and must be made prior to the expiration of the time limit for filing which would otherwise apply. Id. There are also situations where, when additional pertinent evidence is received during the time allowed for perfecting an appeal, VA must afford the claimant at least 60 days from the mailing date of a Supplemental Statement of the Case (SSOC) to perfect an appeal, even if the additional 60-day period would extend the expiration of the original appeal period. VAOPGCPREC 9-97; 62 Fed. Reg. 15567 (1997). Moreover, the United States Court of Appeals for Veterans Claims (Court) held in Percy v. Shinseki, 23 Vet. App. 37 (2009) that the filing of a timely Substantive Appeal may not be needed to perfect an appeal if, after the issuance of the statement of the case, VA misleads the claimant to believe that she had already perfected her appeal. That being said, if the claimant fails to file a Substantive Appeal in a timely manner and fails to timely request an extension of time "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). Furthermore, the Board notes that the regulatory requirement of notice in C.F.R. § 1.525(d) must sensibly be construed to require that the notice to counsel be timely, which requires, we believe, at a minimum, notice before the expressly stated deadline has passed. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § With the above laws and regulations in mind, the Board notes that the facts of this appeal are not in dispute and are, in relevant part, as follows: On June 12, 2015, the RO issued a rating decision that, among other things, denied the Veteran's application to reopen her claim of service connection for headaches, disorientation, and sleepiness, claims of service connection for residuals of second degree burns, a neck disability, tinnitus, and left index, middle and ring finger disabilities, as well as claims for increased ratings for PTSD, a back disability, right knee instability, patellofemoral syndrome of the right knee, and a left knee disorder, hypertension, a left hip disability, a left shin splint, and a right shin splint; On July 13, 2015, the RO issued a rating decision that denied her claims for increased ratings for a right wrist disability, a left wrist disability, and a laceration to right thumb and fourth finger with residual loss of sensation and scarring; On December 23, 2015, the RO received a VA Form 21-22a, from the Veteran's representative which listed their mailing address as "Woods & Woods, LLP, 208 NW 4th Street, Evansville, IN 47708;" On February 22, 2016, the RO received the Veteran's notice of disagreement as to the June 12, 2015, and July 13, 2015, rating decisions; On October 16, 2018, the RO received a VA Form 28-1900, in which the Veteran listed her mailing address as "347 A Pollard Road, Clarksville, TN 37042;" On October 18, 2018, and October 19, 2018, the RO mailed the Veteran's SOCs as to her appeals as to the June 12, 2015, and July 13, 2015, rating decisions to "2117 MLK Parkway, Des Moines, IA 50314" and her representative to "Joseph Michael Woods, Woods and Woods, LLP Evansville, IN 477" and not to the appellant's nor her representative's last address of record; On January 16, 2019, the Veteran called the RO and, in substance, requested copies of the October 18, 2018, and October 19, 2018, SOCs; Also, on January 16, 2019, the RO mailed to the Veteran's last address of record at "347 A Pollard Road, Clarksville, TN 37042" copies of the October 18, 2018, and October 19, 2018, SOCs but copies of the SOCs were not mailed to her representative; On April 1, 2019, the Veteran filed with the RO a statement in support of claim in which she reported, in substance, that neither she or her representative had received the October 18, 2018, and October 19, 2018, SOCs; and On August 19, 2019, the RO received a VA Form 9, Appeal to Board of Veterans' Appeals, as to the June 12, 2015, and July 13, 2015, rating decisions. Given the above history, the Board finds that the Veteran's representative was not provided notice of the October 18, 2018, and October 19, 2018, SOCs because notice of them was not mailed to her proper address on October 18, 2018, and October 19, 2018, and because copies of them were not mailed to him on January 16, 2019. Therefore, given the RO's failure to provide the Veteran's representative with notice of the October 18, 2018, and October 19, 2018, SOCs, the Board finds that the time to perfect the appeals as to the June 12, 2015, and July 13, 2015, rating decisions by filling a substantive appeal was tolled. See 38 C.F.R. § 3.103; Gray, supra; Carter, supra. Accordingly, the Board finds that the RO's receipt of the Veteran's VA Form 9, Appeal to Board of Veterans' Appeals, on August 19, 2019, was timely and acted to perfect her appeal as to the June 12, 2015, and July 13, 2015, rating decisions as to all of the above claims because, given the tolling, it was received within 60 days from the date that the RO mailed the SOCs or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed. See 38 C.F.R. § 20.200. Therefore, the appeals are granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.