Citation Nr: 22050488 Decision Date: 09/03/22 Archive Date: 09/03/22 DOCKET NO. 17-54 480 DATE: September 3, 2022 ORDER The Veterans Affairs (VA) Form 9, Substantive Appeal to the Board of Veterans' Appeals (Board), was not timely filed and was properly not accepted; the appeal is denied. FINDING OF FACT 1. The Veteran's May 18, 2015, Form 9 Appeal was not filed within 60 days of the March 10, 2015, mailing of the statement of the case (SOC) or within one year of the August 2, 2013, mailing of notification of the determination being appealed. 2. Prior to expiration of the time limit for filing his substantive appeal, the Veteran did not request an extension for the filing or submit evidence requiring issuance of a supplemental statement of the case. CONCLUSION OF LAW The VA Form 9, substantive appeal to the Board, was not timely and was properly not accepted. 38 U.S.C. §§ 5107, 7105, 7108; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1982 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded an April 2022 Board videoconference hearing before the undersigned Veteran's Law Judge and a copy of the transcript is associated with the claims file. The Board shall not entertain an application for review on appeal unless it conforms to the law. See 38 U.S.C. § 7108. An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A substantive appeal perfects the appeal to the Board and frames the issues to be considered. Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). A substantive appeal consists of a properly completed VA Form 9 Appeal to Board of Veterans' Appeals or other correspondence containing the necessary information. The substantive appeal must also indicate what issues are being perfected. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal generally must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the SOC to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. § 20.302(b)(1). When a claimant files a timely NOD, but fails to timely file a substantive appeal, the appeal is untimely. See Roy v. Brown, 5 Vet. App. 554, 556 (1993). However, if (i) a claimant submits additional evidence within one year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with 38 C.F.R. § 19.31, that the claimant be furnished a supplemental SOC, then the time to submit a substantive appeal shall end not sooner than 60 days after such supplemental SOC is mailed to the claimant, even if the 60-day period extends beyond the expiration of the one-year appeal period. 38 C.F.R. § 20.302(b)(2). Also, an extension of the 60-day period for filing a substantive appeal may be granted for good cause. The request for an extension must be made in writing prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. In an August 2, 2013, rating decision, the regional office (RO) continued a noncompensable rating for a right inguinal hernia and denied service connection for a right knee condition, lumbar condition, varicose veins of the bilateral lower extremities, bilateral hearing loss, tinnitus, sleep apnea, bronchitis, a right hip condition and a bilateral foot condition. On August 12, 2013, the Veteran filed a timely notice of disagreement (NOD) in regard to the August 2013 rating decision. On March 10, 2015, the RO mailed a letter and a statement of the case (SOC) denying the claims listed in the August 2013 rating decision. The letter explained the purpose of the SOC and outlined the steps necessary to complete a formal appeal of the case to the Board of Veterans' Appeals. The letter also stated the appeal must be filed within 60 days from the date of the letter, or within the remainder of the one-year period of time of the mailing of the notification of the determination being appealed. As the SOC was mailed on March 10, 2015, the one-year period from the August 2, 2013, rating decision had already expired and therefore the Veteran had 60 days from the date of the SOC to submit a formal appeal for a deadline of May 10, 2015. However, 38 C.F.R. § 20.110(b) states "[w]here the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation." Upon review, May 10, 2015, fell on a Sunday, therefore the Veteran would be afforded an additional day until Monday, May 11, 2015, to submit his formal appeal. On May 18, 2015, VA received a VA Form 9 Appeal which was signed on May 9, 2015. However, the postmark on the envelope indicates the appeal was mailed on May 14, 2015. Under 38 C.F.R. § 20.110(a), "a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed." As the May 14, 2015, postmark on the Veteran's appeal indicates it was mailed after the expiration of the appeal period on May 11, 2015, the Board concludes the appeal was not timely filed. While the Veteran testified during his April 2022 hearing that he mailed two copies of the appeal within the time frame required, he stated the only copy he had available was the one currently of record postmarked May 14, 2015. In addition, there is no evidence of record that a good cause written extension of the 60-day period was provided prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. The Board finds the evidence persuasively supports that the Veteran failed to timely file his Form 9 appeal in response to the March 10, 2015, SOC and there is no evidence that he properly made a request for an extension prior to expiration of the time limit for filing a substantive appeal. Therefore, the Board finds that the RO properly declined to accept the Veteran's May 18, 2015, untimely Form 9 as a substantive appeal to the Board; the August 2013 rating decision therefore became final, and the Veteran's claims are no longer on appeal. Accordingly, the Veteran's instant appeal to the Board must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.