Citation Nr: 22013295 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-39 223 DATE: March 9, 2022 ORDER A substantive appeal with respect to the June 2017 rating decision which denied entitlement to service connection for a low back disability was not timely filed; the appeal is denied. FINDINGS OF FACT 1. A June 2017 rating decision denied entitlement to service connection for a low back disorder; an SOC addressing those issues was sent to the Veteran on October 10, 2018. 2. The Veteran's substantive appeal (VA Form 9) was received by VA via facsimile on December 28, 2018, which was not within 60 days of issuance of the October 2018 SOC or within one year of the June 2017 rating decision. CONCLUSION OF LAW A timely substantive appeal was not received with regard to the June 2017 rating decision that denied entitlement to service connection for a low back disorder. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 19.32, 19.34, 19.52, 20.104, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1986 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2019 determination by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which found that the Veteran's substantive appeal (VA Form 9) received on December 28, 2018, was untimely. In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. 1. A substantive appeal was not timely filed with respect to the June 2017 rating decision which denied entitlement to service connection for a low back disability. Under VA regulations, an appeal consists of a timely filed written NOD and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. 38 C.F.R. § 19.22. The necessary information consists of specific arguments relating to errors of facts or law made by the Agency of Original Jurisdiction (AOJ) in reaching the determination being appealed, and the arguments made are to be construed liberally. Id. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302; 38 C.F.R. § 19.52. The date of 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 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. When the rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 3.110. The notification letter attached to the relevant October 10, 2018 SOC included notice that the substantive appeal must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the rating decision. The letter also stated that, if the substantive appeal was not filed within the specified period, the case would be closed. It was further explained that any request for an extension of time to file should be made prior to the expiration of the time limit for filing the appeal. There is no allegation or indication that the Veteran did not receive the October 2018 SOC and notification letter. Here, the October 2018 SOC was issued after the one-year appeal period following the date of notification of the June 2017 rating decision. As such, the Veteran was required to file his substantive appeal within 60 days from the date the AOJ mailed the SOC. Therefore, the date for timely filing of the Veteran's substantive appeal was December 9, 2018. However, as that date was a Sunday, the due date rolled forward to December 10, 2018. 38 C.F.R. § 3.110. The Veteran, through his service representative, submitted a substantive appeal via facsimile that was transmitted and received on December 28, 2018. The document is marked with the date of electronic transmission, and thus the postmark rule does not here apply. The Veteran's substantive appeal was therefore not received, postmarked, or presumptively postmarked within 60 days from the date that the RO mailed the SOC. The Board notes that the period for filing a substantive appeal may be extended for good cause. 38 C.F.R. § 19.53. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal or the response to the Supplemental SOC (SSOC). Id. The request for extension must be filed with the VA RO from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another VARO. Id. A denial of a request for extension may be appealed to the Board. Id. Ordinarily, if the appellant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he is statutorily barred from appealing the RO decision. 38 U.S.C. §§ 7105(a), (d)(3), 7108. Here, there is no document filed by either the Veteran or his representative that can be construed as a timely request for an extension. Under 38 C.F.R. § 3.109, time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause." Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109(b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. And yet, the Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). A substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, however, the Veteran's December 2018 substantive appeal was determined to be untimely by the RO. The RO then provided notice and an explanation to the appellant of its determination in a January 2019 letter, and subsequently in an October 2019 SOC. Thus, VA has not taken action to indicate to the Veteran that the substantive appeal was timely. The Veteran and his representative have asserted that the December 2018 substantive appeal filed with respect to the appeal for service connection for a low back disorder should be accepted in this case because the Veteran was not at fault for the untimely submission. See, e.g., December 2020 Board Hearing Transcript. Specifically, they contend that the Veteran submitted his signed VA Form 9 to his then-representative on December 5, 2018, five days before the expiration of the 60-day period; however, the representative did not forward the substantive appeal to VA until December 28, 2018. See id. Significantly, the Veteran's testimony in this regard is borne out by the evidence, which shows that he signed his substantive appeal on December 5, 2018. This argument is essentially equitable in nature and thus raises the issue of equitable tolling. See Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006) (holding that the deadline for filing the substantive appeal is subject to equitable tolling). Generally, equitable tolling applies only where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the RO or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curium order). There is a three-part test to determine whether "extraordinary circumstances" justify equitable tolling: (1) the extraordinary circumstance must be beyond the Veteran's control, (2) the Veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the Veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). The relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). However, neither the Veteran nor his service representative has argued, and the record does not document, any delay caused by an event or events rising to the level of an extraordinary circumstance to justify equitable tolling. As discussed above, the Veteran and his representative were advised of the requirements for filing a timely substantive appeal or requesting an extension, and there is no indication that they were prevented from doing so. Instead, the Veteran's assertion rests upon the ineffective assistance of his chosen representative. However, in Nelson v. Nicholson, the U.S. Court of Appeals for Veterans Claims held that ineffective representation, including specifically "missing a filing deadline, does not rise to the level of an extraordinary circumstance" warranting equitable tolling. See Nelson v. Nicholson, 19 Vet. App. 548 (2006) aff'd 489 F.3d 1380 (Fed. Cir. 2007). As such, the Board finds no basis for equitable tolling of the filing deadline. In light of the foregoing, the Board finds that the substantive appeal filed on December 28, 2018, with respect to the June 2017 rating decision that denied service connection for a low back disability is not timely. The Board acknowledges and appreciates the Veteran's honorable military service and sympathizes with him regarding his reliance upon his representative to file the appeal in a timely manner. However, despite the Veteran's well-articulated and sincere arguments presented in his documentation in support of this appeal, the Board is bound by the statutes, regulations, and precedential decisions discussed above. 38 U.S.C. § 7104(c); 38 C.F.R. § 19.5. The Board regrets that it cannot render a favorable decision on this matter; however, the appeal as to the timeliness of the substantive appeal with respect to the June 2017 rating decision must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.