Citation Nr: 22051166 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-48 648 DATE: September 8, 2022 ORDER The Veteran's substantive appeal to the June 2015 statement of the case (SOC) was not timely filed, and the appeal is denied. REMANDED Entitlement to service connection for a lung disorder is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to service connection for hernia repair scars is remanded. Entitlement to service connection for a left foot skin disorder is remanded. Entitlement to service connection for a right foot skin disorder is remanded. Entitlement to service connection for acne is remanded. FINDINGS OF FACT 1. The Veteran initiated an appeal to multiple severance issues in a December 2012 rating decision for which notification was mailed the following month. The agency of original jurisdiction (AOJ) issued an SOC on June 23, 2015, and the Veteran and his representative were mailed a copy of the SOC on July 13, 2015. 2. Neither the Veteran nor his representative filed a substantive appeal or a request for an extension of time to file a substantive appeal within 60 days from the date of mailing of the SOC, including consideration of the applicable rules for computing the time limit for filing a written document. CONCLUSION OF LAW The criteria for the timely filing of a substantive appeal to the June 2015 SOC have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 19.53, 20.104, 20.110, 20.111 (previously §§ 20.101, 20.200, 20.201, 20.202, 20.302, 20.303, 20.305, 20.306). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2002 to March 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 decision issued by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in April 2022. A transcript of the hearing is of record. The Veterans Law Judge confirmed on the record that the Veteran wanted to proceed without representation. See also November 2020 written statement (representative withdrew representation and notified Veteran of option obtain new representation). Law and Analysis Initially, the Board has determined in this decision that a timely substantive appeal was not filed to the June 2015 SOC. Because the Board does not have jurisdiction to consider the merits of the claims in the absence of a timely substantive appeal, VA is not required to take any further action to assist the Veteran. See 38 U.S.C. § 5103A(a) and Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); VAOGCPREC 5-2004 (June 23, 2004). The AOJ addressed the issue on appeal in the first instance prior to the Board's consideration of the matter. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Under 38 U.S.C. § 7105 for Legacy (pre-modernized review system) appeals in effect at the times relevant to this case, 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 an SOC is furnished to the claimant. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. See 38 C.F.R. §§ 19.20, 19.21, 19.22. A substantive appeal must be filed within 60 days from the date that the 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 period ends later. 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. 38 C.F.R. § 19.52(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause shown. 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. 38 C.F.R. § 19.53. 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. 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. §§ 20.110; 20.111 (legal holidays). The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case. All claimants in Legacy appeals have the right to appeal a determination made by the AOJ that the Board does not have jurisdictional authority to review a particular case, including questions relating to the timely filing and adequacy of the substantive appeal. 38 C.F.R. § 20.104(c), (d) (previously 38 C.F.R. § 20.101(c), (d), as amended). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the criteria for the timely filing of a substantive appeal in response to the June 2015 SOC have not been met. The Veteran initiated an appeal as to multiple severance issues in a December 2012 rating decision for which notification was mailed the following month. The AOJ issued an SOC on June 23, 2015. The SOC notification letter does not contain a date stamp, but the Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran and his attorney representative at that time (referenced throughout this decision as his representative) were mailed a copy of the SOC on July 13, 2015. Neither the Veteran nor his representative filed a substantive appeal or a request for an extension of time to file a substantive appeal within 60 days from the date of mailing of the SOC (i.e., prior to expiration of the time limit for filing the substantive appeal in this case), and he does not dispute this fact. See Crumlich v. Wilkie, 31 Vet. App. 194 (2019). Rather, the Veteran testified that he does not dispute when the VA Form 9 was submitted, acknowledging that his representative's office missed the deadline by a day or two. He also testified that he was aware that his representative was on a military assignment at that time; he spoke with the representative's assistant a few times and communicated with the representative through email as to filing a VA Form 9 during the relevant period from June 2015 to September 2015, and he relied on his representative to submit the completed form and did not submit one or a request for an extension of time to file one himself. See April 2022 Bd. Hrg. Tr. While not dispositive, the Board notes that, even with consideration of the above rules for computing the time limit for filing a written document in the absence of a postmark of record, the substantive appeal in this case was still untimely. The Board also notes, as a point of clarification, that the Veteran's understanding that the representative was authorized to act on his behalf for the filing of the VA Form 9 was accurate. As the Veterans Law Judge explained during the hearing, the representative had the authority to act on the Veteran's behalf at that time because the Veteran had not revoked him as the representative, and the representative had not withdrawn his representation for the severance issues that were covered by his appointment. See April 2022 Bd. Hrg. Tr.; see also March 2013 VA Form 21-22a with limited representation for reduction of combined compensation evaluation issue due to severance of multiple service-connected disabilities. The record shows that the Veteran and his representative executed a new VA Form 21-22a to appoint the representative more broadly in November 2015 (i.e., after the filing of the September 2015 VA Form 9 at issue for the merits of the severance actions and the November 2015 AOJ decision regarding the timeliness of that document), but there was no earlier revocation or withdrawal of his representation under the initial appointment. In addition, the Veteran's representative specifically indicated on the September 2015 VA Form 9 that the document was being filed outside of the 60-day time limit. The representative requested that VA accept the submission as timely for the following reasons: (1) for good cause shown because the representative had been on active military duty overseas and unable to file it earlier, along with communication issues; (2) the submission was filed "within one calendar year of the adverse VA decision"; and, (3) the Veteran may have already filed a timely VA Form 9, and if he did, the current submission should be considered as an amended VA Form 9. See also March 2016 representative written statement (continued to acknowledge VA Form 9 was not filed within [60] day time limit, but also asserted that form was received within one year of notice of adverse VA decision). Nevertheless, the representative's arguments are unavailing. This submission, when considered as a concurrent request for an extension of time to file the VA Form 9, was made after expiration of the time limit for filing the substantive appeal. The "adverse VA decision" in this case (i.e., the determination being appealed) is the December 2012 rating decision taking final severance actions. The one-year period from the date of the January 2013 notification of that determination would be in January 2014, thereby making the 60-day period after the SOC the later of the two periods, as the one-year period from the January 2013 notification letter had already passed. The representative also argued that there should be a basis in equity for accepting the substantive appeal after the filing deadline. See September 2017 VA Form 9 for timeliness appeal. The deadline for filing the substantive appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519 (2006). 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 Regional Office or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). A physical illness or condition that impairs cognitive function may also justify equitable tolling. Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005). In addition, there is a three-part test to determine whether "extraordinary circumstances" in particular 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); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). In this case, although the Board is sympathetic to the reported communication issues between the Veteran and his representative at that time, the record shows that they were in receipt of the SOC and aware of the filing deadline (facts that they did not dispute), but no submission indicating an intent to seek further review of the claims was provided to VA until after the deadline for the filing of the substantive appeal passed, including any request for an extension of time to submit the substantive appeal or other communication with VA as to the representative's situation that could possibly result in a delay for the filing of that document. The Veteran's own testimony makes it clear that he did not file a VA Form 9 or a request for an extension of time to do so. The record does not reflect that he was prevented from making such a filing or communication as a result of a physical or mental disorder, and he was aware that his representative was on a military assignment while the appeal period continued to run. Indeed, the Veteran testified that he had been in contact with the attorney by email and spoke with his assistant a few times in the period from June 2015 to September 2015 before the VA Form 9 was due. He indicated that the representative did not recommend that he submit the document himself. Nevertheless, the record shows that the Veteran has otherwise communicated directly with VA, including in the year prior to the time period at issue in this appeal. See, e.g., July 2014 written submission (request to AOJ to expedite case based on financial status); March 2022 report of general information (request to change hearing to tele-hearing after January 2022 Board letter informing him of that option). In fact, the Veteran sent the July 2014 written submission on his own behalf as a follow-up request to expedite his case first sent by his representative. See May 2014 representative written statement with email attachment (initial request to expedite case after May 2014 email exchange in which Veteran requested appeal status from representative). A reasonably diligent person under the same circumstances would have, at the minimum, contacted VA to alert them to his representative's situation and/or to ask for additional time to submit the VA Form 9 after demonstrating awareness of the filing deadline through the multiple communications with the representative's office about submission of the document, as noted above, and a demonstrated ability to directly contact the AOJ in connection with his appeal. Therefore, it cannot be said that the Veteran exercised due diligence in preserving his appellate rights. The representative also noted in the September 2015 VA Form 9 that he remained on active duty through the middle of the following month, but he also indicated that he could be contacted by VA through his law firm email. See also, e.g., May 2014 email attachment (shows same email address for attorney as provided in September 2015 VA Form 9). The representative's contention that he was unable to file the form prior to the date it was received in September 2015 is inconsistent with the Veteran's reports through his testimony that the representative was reachable through his law firm email address and that the representative had at least one office representative authorized to speak with clients in his absence. Based on the foregoing, the record does not show that the claimed extraordinary circumstances justify equitable tolling under the factors set forth above. In summary, the Board concludes that a timely substantive appeal was not filed with the June 2015 SOC. Therefore, the appeal must be denied. The Board notes that, as discussed at the hearing, the Veteran is not prohibited from appointing a new representative and/or filing any other claims at the Regional Office, including new claims for service connection for the disabilities addressed in the December 2012 rating decision. REASONS FOR REMAND Regarding the service connection claims, the Board finds that the Veteran challenged the AOJ's denials of those claims in an August 2012 rating decision and corresponding notification letter in a February 2013 notice of disagreement (NOD). Therefore, a remand is required for the AOJ to issue an SOC. See 38 C.F.R. § 20.904(c); Manlincon v. West, 12 Vet. App. 238 (1999). The case is REMANDED for the following action: The AOJ should issue an SOC addressing the issues of entitlement to service connection for a lung disorder, a hernia, hernia repair scars, a left foot skin disorder, a right foot skin disorder, and acne. See August 2012 rating decision and corresponding notification letter; February 2013 NOD (located in November 2017 veteran readiness and employment (VR&E) folder entry, p. 41). Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these particular issues following the issuance of the SOC unless he perfects an appeal. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.