Citation Nr: 21005466 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 19-22 984 DATE: February 1, 2021 ORDER The Board of Veteran’s Appeals (Board) waives the issue of timeliness of in the filing of the Substantive Appeal received in December 2018, and to that extent only, the claim is allowed. FINDINGS OF FACT 1. The April 2016 Statement of the Case (SOC) and the SOC notice letter (incongruently dated February 8, 2016), had the potential for the Veteran to believe his period to appeal the denial of service connection for PTSD had expired. 2. The Veteran’s representative was not sent a copy of the April 2016 SOC; the preponderance of the evidence weighs in favor of a finding that within 60 days of becoming aware of the April 2016 SOC, a Substantive Appeal was received. CONCLUSION OF LAW The Board has the authority to determine whether it has jurisdiction to review a case, and the period in which to timely file a Substantive Appeal does not represent a jurisdictional bar to such review; given the circumstances of this particular case, the issue of timeliness of the Veteran’s Substantive Appeal is waived. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. §§ 19.30, 20.200, 20.202, 20.303 (2018); Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2002 to November 2002 and from January 2003 to July 2004; at all other times from December 2000 to September 2008, he was a member of the Reserves or National Guard. The appeal regarding the timeliness of the Substantive Appeal stems from a December 2018 administrative decision. The Veteran properly perfected his appeal to the Board, and it was denied in a September 2019 decision. He properly appealed to the Court of Appeals for Veterans Claims (Court) and in an August 2020 Court Order based on an August 2020 Joint Motion for Remand (Joint Motion), the parties agreed to vacate and remand the September 2019 decision due to two reasons and bases errors. First, the parties agreed the Board erred when it failed to respond to the Veteran’s argument that the notice associated with the Statement of the Case (SOC) was defective. Second, the parties agreed the Board erred when it relied on a previously invalidated regulation to deny the Veteran’s claim. Specifically, the parties noted that in its September 2019 decision the Board stated, “the date of the 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 determination will be presumed to the same as the date of that letter for purposes of determining whether an appeal has been timely filed.” In the Joint Motion, the parties pointed out that the Court had previously invalidated this portion of 38 C.F.R. § 20.302. See Crumlich v. Wilkie, 31 Vet. App. 194, 204 (2019) (“[T]he part of [38 C.F.R. § 20.302(b)(1)] that contains a presumption of the date of mailing of the SOC is invalid.”). Accordingly, the September 2019 Board decision was vacated, and the Veteran’s claim was remanded for compliance with the Joint Motion. Given that the Board has found that the timeliness of the Substantive Appeal for service connection for PTSD is waived, the issue of service connection for PTSD on the merits is also now before the Board, and is discussed in the remand portion of this decision. Timeliness of Appeal Pertinent to the Veteran’s claim and the time period in question, under what is known as the Legacy system, an appeal consisted of a timely filed written Notice of Disagreement (NOD) with a rating decision and, after an SOC was furnished, a timely filed Substantive Appeal. 38 C.F.R. §§ 20.200, 20.202 (2018). As a general rule, a Substantive Appeal was required to be filed within 60 days from the date that the Agency of Original Jurisdiction (AOJ) mailed the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination (rating decision) being appealed, whichever period ends later. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). Further, VA regulation provided that an extension of time for filing a Substantive Appeal may be granted for good cause. 38 C.F.R. § 20.303 (2018). Significantly, the Court has also held that VA may waive any untimely Substantive Appeal, explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). 1. Whether the timeliness of the Substantive Appeal received in December 2018 may be waived By way of history, a February 2015 rating decision reopened the claim for entitlement to service connection for PTSD (previously denied in a June 2013 rating decision) and denied in on the merits. The Veteran submitted a timely NOD, which was received on February 8, 2016, and VA acknowledged receipt of this NOD in a February 22, 2016, letter to the Veteran. On April 19, 2016, VA received a VA Form 21-22a signed by the Veteran appointing Attorney Mary Anne Royle as his representative along with a Freedom of Information Act (FOIA) request. It appears VA issued an SOC with respect to the claim for service connection for PTSD on April 19, 2016, the same day the Veteran’s election to appoint Attorney Royle was received. Notably, the SOC explanation is dated April 19, 2016, and a carbon copy was sent to the Veteran’s prior representative, Veterans of Foreign Wars (VFW). Oddly, the SOC cover letter is dated February 8, 2016, (the date of receipt of the Veteran’s NOD) and contains the following instruction: “You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action you have appealed.” Thus, the Board finds it is logical that the SOC was actually mailed to the Veteran on April 19, 2016, given that the Veteran’s NOD was received on February 8, 2016. Thus, assuming the SOC notification letter and SOC explanation were mailed together on April 19, 2016, which is already more than 60 days from the date of the letter (February 8, 2016) and more than one year since the rating decision was issued, and it is logical to find the Veteran may have believed the time to perfect his appeal had expired. Further, the Board notes that a copy of the SOC was not sent to the Veteran’s newly appointed representative, Attorney Royle, as was required by VA regulation. See 38 C.F.R. § 19.30(a) (indicating that an SOC must be forwarded to the Veteran with a separate copy provided to his representative) (2018). Rather, it was sent to his prior representative, VFW. Notably, in a May 2016 letter to Attorney Royle, the AOJ acknowledged her April 2016 FOIA request. In October 2016 and again in November 2016, Attorney Royle informed VA of her firm’s new address. When the FOIA request was completed and sent to her in April 2017, which, by that time presumably would have included a copy of the April 2016 SOC, it was sent to her old address. Although the April 2017 mailing was not returned as undeliverable, given that VA should have had notice of Attorney Royle’s last address of record (which she clearly provided twice approximately five to six months prior), the presumption of regularity with regarding to mailing of notice does not attach, and the Board cannot find there is probative evidence that she received notice at this stage. See Clark v. Principi, 15 Vet. App. 61, 63 (2001) (discussing the presumption of administrative regularity); cf. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (holding that the presumption of regularity with regard to mailing of notice attaches if VA mails notice to the last address of record) (emphasis added). In December 2018, VA received a Substantive Appeal from Attorney Royle disagreeing with the denial of service connection for PTSD. On the third page of the Substantive Appeal, she argued that upon review of the Veteran’s electronic claims file, she recently discovered an SOC explanation/summary and SOC notice letter (with incongruent dates), which she was never provided with, as required by VA regulation. See 38 C.F.R. § 19.30(a) (2018). The Board has considered the foregoing procedural history and the arguments set forth by the Veteran and his representative and finds under the specific facts of this particular case, the preponderance of the evidence weighs in favor of a finding that the timeliness of the December 2018 Substantive Appeal should be waived. Initially, as previously discussed, the Board recognizes the conflicting dates on the SOC notice letter and the SOC summary and finds that it is understandable the Veteran may have perceived that his period to appeal that decision to the Board had expired. Next, the Board finds the doctrine of equitable tolling applies to this case and supports a finding that the traditional time period within which the Veteran had to submit his Substantive Appeal is waived. As a general matter, “equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has pursued his [or her] rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Alvarez, 572 U.S. 1, 10 (2014). VA has also promulgated a regulation that allows for time periods to be tolled based on good cause. 38 C.F.R. § 3.109(b) (“[t]ime 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.”). Under the “stop-the-clock” approach adopted by the U.S. Court of Appeals for the Federal Circuit in Checo v. Shinseki, 748 F.3d 1373, 1379-80 (Fed. Cir. 2014), a filing period may be tolled when an obstacle to timely filing arises, and the period begins to run again when that obstacle is removed. Thus, the relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. As discussed, the April 2017 FOIA compliance, which presumably would have put Attorney Royle on notice of the April 2016 SOC, was sent to an incorrect address, despite the fact she kept VA apprised of her new address in October and November 2016. Thus, the Board cannot conclude the obstacle to a timely filing was removed at that point. In December 2018, Attorney Royle submitted a Substantive Appeal and indicated that upon review of the Veteran’s electronic claim’s file, she became aware of the SOC notice letter and SOC summary, which contained incongruent dates and which she stated she never received. Here, the Board finds no reason to presume that upon her awareness of the aforementioned documents that she waited more than 60 days to file a Substantive Appeal. Thus, the Board concludes that within 60 days or less of the obstacle being removed (i.e. her becoming aware of the SOC she never received) that she took action to file a Substantive Appeal. Accordingly, the timeliness of the December 2018 Substantive Appeal with respect to the denial of service connection for PTSD is waived. As such, the appeal of the timeliness issue is granted and the appeal of the underlying claim should be reinstated. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.