Citation Nr: 21042025 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-57 510 DATE: July 11, 2021 ORDER Entitlement to service connection for a sinus condition is dismissed. Entitlement to temporary total evaluation based on convalescence following surgery is dismissed. Entitlement to service connection for a skin condition is dismissed. Entitlement to special monthly compensation based on aid and attendance is dismissed. FINDING OF FACT The Veteran did not file a substantive appeal (VA Form 9) within 60 days of the August 13, 2020, statement of the case (SOC). CONCLUSIONS OF LAW 1. A substantive appeal was not received with respect to the February 2015 rating decision that denied service connection for skin and sinus disabilities. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303, 20.305 (2020). 2. A substantive appeal was not received with respect to the November 2015 rating decision that denied temporary total evaluation based on convalescence following surgery and entitlement to special monthly compensation. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1974 to August 1978. These matters come before the Board of Veterans' Appeals (Board) from February 2015 and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran filed a notice of disagreement regarding the issues on appeal. In December 2018, the Board found that the RO had not provided the Veteran with a statement of the case (SOC) in response to his notice of disagreement. The Board remanded the matters, instructing the RO to issue a SOC. The RO issued a SOC on August 13, 2020. Although the Veteran did not perfect his appeal to the Board by submitting a VA Form-9, the RO recertified the appeal to the Board in September 2020. 1. Entitlement to service connection for a sinus condition 2. Entitlement to temporary total evaluation based on convalescence following surgery 3. Entitlement to service connection for a skin condition 4. Entitlement to special monthly compensation based on aid and attendance For the Board to have jurisdiction to review a decision issued by the Agency of Original jurisdiction (AOJ), a timely substantive appeal must be received. A timely substantive appeal initially requires that a written NOD be filed within one year after the date of the AOJ denial. Thereafter, the AOJ must issue a SOC on the matter being appealed. Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board. A timely substantive appeal is one filed in writing, within 60 days of the date of notice of the SOC, or within the remainder of the one-year period of the date of notice of the AOJ decision being appealed, whichever is later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Here, the Board finds determinative that the Veteran did not submit a VA Form 9 perfecting his appeal on the issue of entitlement to service connection for a sinus condition, entitlement to temporary total evaluation based on convalescence following surgery, entitlement to service connection for a skin condition, or entitlement to special monthly compensation based on aid and attendance. The Board acknowledges that VA law provides exceptions for when a VA Form 9 is not timely filed. For example, the timely filing of a substantive appeal may be waived either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37 (2009). The filing of a timely substantive appeal is implicitly waived where VA takes actions indicating that it has accepted the issue as being on appeal without the filing of a timely substantive appeal. Id.; Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003). However, the Board finds such exceptions are not applicable in this case as a VA Form 9 has not been filed with respect to the issues at any time during the pendency of the appeal. Although the Veteran was notified that his appeal (arising from his NOD) was returned to the Board, there has been no explicit or implicit representation by VA, either by the AOJ or the Board, that it was waiving the filing requirement of a timely substantive appeal. Percy, supra. Given the absence of a VA Form 9 on the issues above, the timeliness of such a form is not at issue. Moreover, the Veteran has not presented any additional arguments or expressed further disagreement regarding any of the issues on appeal subsequent to the August 2020 SOC. In sum, the law is clear that a substantive appeal must be filed with the AOJ within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C. § 7104. For the foregoing reasons, the Board concludes that a timely substantive appeal was not filed with respect to the issues of entitlement to service connection for a sinus condition, entitlement to temporary total evaluation based on convalescence following surgery, entitlement to service connection for a skin condition, or entitlement to special monthly compensation based on aid and attendance. Therefore, the Veteran's appeal on such issues must be dismissed by the Board for lack of jurisdiction J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.