Citation Nr: 21026385 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-00 936 DATE: April 30, 2021 ORDER The Veteran’s substantive appeal to the April 2012 denial of entitlement to total disability based on individual unemployability (TDIU), is untimely. FINDING OF FACT The Veteran did not file a substantive appeal within 60 days of the date on which the October 29, 2013 statement of the case (SOC) was sent to the Veteran or within one year of the April 2, 2012 notification letter. CONCLUSION OF LAW The criteria for a timely substantive appeal are not met. 38 U.S.C. 7105; 38 C.F.R. §§ 19.52(b), 19.53, 20.202, 20.302(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1970. He died in December 2014. The Appellant is his surviving spouse, properly substituted in January 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 Notification Letter of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant provided testimony at a July 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. In the November 2017 notice of disagreement (NOD) the Appellant argued “soon after the issuing of the statement of the case (SOC), my husband was hospitalized. As noted in his VA file, he was suffering with newly severe conditions that affected his ability to focus on the matters in question. The appeal was filed as timely as possible.” Under 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal (VA Form 9 or equivalent) after a SOC is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information; a substantive appeal must identify the issues being appealed (specifying some or including all), and present specific allegations of error by VA in denying the claim. See 38 C.F.R. § 20.202. To be considered timely, a substantive appeal must be filed with the agency of original jurisdiction (AOJ) within 60 days from the date that the agency mails notice of the SOC to the claimant, or within the remainder of the one-year period from the date of notice of the decision being appealed, whichever is later. 38 C.F.R. §§ 20.302(b)(1), 19.52(b). 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. Id. Additionally, the deadline for filing a substantive appeal may be (1) extended for good cause if the claimant files a request in writing during the appeal period, 38 C.F.R. § 19.53; or (2) equitably tolled, Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling is justified in “extraordinary circumstances.” McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met: (1) the extraordinary circumstance must be beyond the claimant’s control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant must exercise “due diligence” in preserving his or her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id. In addition to the availability of equitable tolling, the Board also observes that the substantive appeal itself may be waived explicitly or implicitly by VA. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In this case a March 29, 2012 rating decision denied the TDIU claim. On April 2, 2012, a notification letter addressing the denial of the TDIU claim was mailed to the Veteran. He filed a NOD on July 2, 2012. A SOC was issued on October 29, 2013. On February 12, 2014 the Veteran submitted a substantive appeal which was received on February 14, 2014. During the July 2020 Board hearing the Appellant’s testimony indicated “to the best of my recollection, the only reason that I know that it was not sent in was my husband, was I believe in the hospital at that time. And it was --we were out of town at the hospital and that’s all I can really recall.” The Board reviewed the medical records for the time period from October 29, 2013 to February 14, 2014. On December 18, 2013 the Veteran had a clinic visit for a campfire burn on his right calf, however he was not admitted to the hospital. He reported receiving the burn two weeks prior. On January 31, 2014 the Veteran attended a neurosurgery consultation for his back. On February 11, 2014 he attended a VA examination for his psychiatric claim. The Veteran did not submit any statements or requests for an extension during the interim. On review, the Board finds that the Veteran’s substantive appeal is untimely. Based on the SOC date the Veteran had until December 29, 2013, to submit his substantive appeal. The Veteran did not submit a substantive appeal until February 14, 2014 and the record does not reflect any request for an extension. Also, the Board notes the substantive appeal submission date is outside the remainder of the one-year period from the date of notice of the decision being appealed. See 38 C.F.R. § 19.52(b). As noted above, the decision appealed is a March 29, 2012 rating decision with an April 2, 2012 notification letter. The Veteran’s substantive appeal was received more than a year from the April 2, 2012 notification letter. Furthermore, the Board finds equitable tolling is not applicable in this case. Although the Appellant testified to the Veteran being in the hospital shortly after the SOC was issued, the record does not reflect such hospitalization. The Veteran was seen in a VA clinic on December 18, 2013 for campfire burn only. The record does not indicate he was hospitalized for the burn. As such, the evidence does not reflect an extraordinary circumstance beyond the Veteran’s control nor does the record demonstrate the Veteran exercised due diligence in preserving his appellate rights. Notably, from October 29, 2013 to February 14, 2014 the record is silent as to any statements or attempts to pursue the appeal from the Veteran or the appellant. Additionally, the Board finds that the substantive appeal itself has not been waived explicitly or implicitly by VA. The record does not reflect the AOJ’s acknowledgement of the February 14, 2014 substantive appeal submission prior to October 2017 and the AOJ never certified the case to the Board. Also, the AOJ did not perform any development related to the TDIU claim. Accordingly, the Board finds the substantive appeal received on February 14, 2014 was untimely as it was not received within the time constraints as defined by VA regulations. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.