Citation Nr: 21032886
Decision Date: 05/28/21	Archive Date: 05/28/21

DOCKET NO. 19-31 533
DATE: May 28, 2021

REMANDED

The issue regarding the timeliness of a September 22, 2017 substantive appeal is remanded.  

REASONS FOR REMAND

The Veteran retired from the U.S. Navy after serving on multiple periods of active duty between June 1952 and August 1978.      

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). 

In April 2021, the Veteran testified in a hearing before the Board.  A transcript of the hearing has been included in the electronic claims file and has been reviewed.

A remand is warranted for inquiry into the question of whether extraordinary circumstances existed between October 2016 and September 2017 such that the Veteran was precluded from filing a timely VA Form 9 following a December 2015 rating decision and October 2016 statement of the case (SOC), both of which addressed a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD).  Ultimately, VA received the substantive appeal on September 22, 2017, nearly one year after issuance of the SOC.  See 38 C.F.R. §§ 20.200, 20.300, 20.302.  

In the July 2019 SOC addressing the timeliness issue, the RO did not address in detail what impact the Veteran's health status in late 2016 had on his ability to file the appeal.  A deeper examination of the situation is warranted before the Board decides to either accept or decline jurisdiction over the claim.  See Evans v. Shinseki, 25 Vet. App. 7, 12 (2011); Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

The deadline for filing a substantive appeal may be extended for good cause if the claimant files a request in writing during the appeal period.  38 C.F.R. § 20.303.  The record indicates that the Veteran did not submit in writing a request for extension.  

The deadline for filing a substantive appeal may also be 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).  A determination regarding equitable tolling should consider: (1) the extraordinary circumstance(s) beyond the claimant's control, (2) whether the untimely filing was a direct result of the extraordinary circumstances, and (3) whether "due diligence" has been exercised in preserving the appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal.  Id. at 332.  

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The matter is REMANDED for the following action:

After reviewing the Veteran's testimony before the Board, and the medical evidence of record indicating eye and heart problems in late 2016, readjudicate the claim on appeal and address whether extraordinary circumstances existed which prevented the Veteran from timely appealing the December 2015 rating decision denying entitlement to service connection for COPD.  Then, if in order, return the case to the Board.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher McEntee, 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.