Citation Nr: 21014873 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-11 381 DATE: March 16, 2021 ORDER A timely substantive appeal was not received following the issuance of a statement of the case (SOC) addressing the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for a back disorder on May 16, 2013; the appeal is denied. FINDING OF FACT Following the issuance of a SOC addressing the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for a back disorder on May 16, 2013, a substantive appeal was not received until August 21, 2013. CONCLUSION OF LAW A timely substantive appeal was not received following the issuance of a SOC addressing the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for a back disorder on May 16, 2013. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 19.51, 19.52, 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to January 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an administrative decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). Whether a timely substantive appeal was received following the issuance of a SOC addressing the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for a back disorder on May 16, 2013. The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.104(c). A determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104(d)(1). An appeal consists of a timely filed Notice of Disagreement (NOD) submitted in accordance with the provisions of § 19.21, and either § 19.52(a) or § 20.501(a), as applicable and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date the Agency of Original Jurisdiction (AOJ) mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. 38 C.F.R. §§ 19.51, 19.52(b). The date of mailing of the SOC will be presumed to be the same as the date of the SOC. 38 U.S.C. § 7105; 38 C.F.R. § 19.52(b). However, VA may implicitly or explicitly waive the issue of the timeliness of a substantive appeal, and the filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar to the Board’s jurisdiction. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board may also decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. Id. at 45. By way of background, VA received the Veteran’s application to reopen a previously denied claim of entitlement to service connection for a back disorder in December 2010. In a rating decision issued on August 29, 2011, the AOJ denied such claim and she entered a timely NOD in October 2011. On May 16, 2013, the AOJ issued a SOC addressing such matter, which was sent to the Veteran’s address of record, with a copy to her representative, and not returned as undeliverable. Furthermore, as discussed further herein, she does not contend that she did not receive the SOC. Such included a substantive appeal (VA Form 9) and them advised of the following: 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 that you have appealed. If we do not hear from you within this period, we will close your case. [Emphasis in original]. On August 21, 2013, the AOJ received the Veteran’s completed VA Form 9 in which she attempted to perfect her appeal of the May 2013 SOC. However, as such was not received within one year of the issuance of the August 2011 rating decision or 60 days of the issuance of the May 16, 2013, SOC, it was deemed untimely. The Veteran reports that, after receiving the May 2013 SOC, she immediately contacted her representative for assistance and was advised to mail a statement saying that she disagreed with the AOJ’s decision. She states that she wrote the letter and thought she mailed it to the VA; however, she instead mailed an empty envelope. In this regard, the Veteran explained that, during this time, she was under a great amount of stress and turmoil due to the death of her aunt, whom she lived with at the time, and her brother-in-law, which took place within hours of burying her aunt. Later, while cleaning out her aunt’s belongings, she found that the VA Form 9 was mixed up in some of her aunt’s papers. The Veteran realized that it was past the time frame that the letter needed to be mailed, but sent it anyway in hope that it could still be processed. However, as the Veteran did not file a request for an extension of time to submit her substantive appeal based on good cause in a timely manner, and her substantive appeal was received more than one year after the issuance of the rating decision on August 29, 2011, and more than 60 days after the issuance of the SOC on May 16, 2013, it is untimely. 38 C.F.R. §§ 19.51, 19.52(b), 19.53. Furthermore, the Board finds that VA has not waived the requirement to timely file a substantive appeal, and the Board declines to do so. See Percy, supra. In this regard, the Board finds that the instant case is distinguishable from the facts in Percy. In Percy, the Court found that, by treating a disability rating matter as if it were part of the Veteran’s timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal. Id. However, in the instant case, the AOJ did not treat the Veteran’s August 2013 VA Form 9 as if it were timely. To the contrary, less than a month after receiving it, the AOJ notified the Veteran that such was untimely, and at no point did the AOJ treat the underlying matter regarding the Veteran’s application to reopen her previously denied claim of entitlement to service connection for a back disorder as being on appeal. Thus, the Board finds that the issue of timeliness of the Veteran’s substantive appeal has not been waived by VA at any time, either explicitly or implicitly, and, based on such facts, the Board likewise does not waive the requirement of a timely substantive appeal. Therefore, while the Board is sympathetic to the Veteran regarding the difficult time she had surrounding the deaths of her aunt and brother-in-law, the instructions included with the May 2013 SOC clearly conveyed the statutory and regulatory guidelines concerning the time period within which to perfect an appeal to the Board. The Court has held that every claimant for VA benefits is charged with knowledge of the applicable laws and regulations. Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (“regulations are binding on all who seek to come within their sphere, ‘regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.’“). Furthermore, the Board has no authority to waive the statutory time limit due to the Veteran’s reported mistake of sending an empty envelope or the difficult personal circumstances she experienced during the time period in question. For the foregoing reasons, the Board finds that a timely substantive appeal was not received following the issuance of the SOC addressing the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for a back disorder on May 16, 2013, and such requirement is not waived. Consequently, the Veteran’s appeal must be denied. In this regard, the Veteran is advised that, if she wishes to file another application to reopen the previously denied claim of entitlement to service connection for a back disorder, she may do so at the AOJ. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.