Citation Nr: A24036645
Decision Date: 07/09/24	Archive Date: 07/09/24

DOCKET NO. 210311-146240
DATE: July 9, 2024

ORDER

The Veteran's March 2020 request for Higher-Level Review of the March 2019 rating decision was timely.

FINDING OF FACT

The Veteran's March 18, 2020, request for Higher-Lever Review was timely filed.

CONCLUSION OF LAW

The Veteran's March 18, 2020, request for Higher-Level Review was timely filed.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.2601.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1978 to December 1974.  He appeals a March 2019 Higher-Level Review decision finding the March 5, 2019, Higher-Level review request untimely.  He opted for 90 days to submit additional evidence followed by review from a Veterans Law Judge.

Higher-Level Review Time to File

A complete request for higher-level review must be received by VA within one year of the date of VA's issuance of the notice of the decision.  If VA receives an incomplete request form, VA will notify the claimant and the claimant's representative, if any, of the information necessary to complete the request form prescribed by the Secretary.  38 C.F.R. §§ 3.2601(d).  

1. Timeliness of the March 18, 2020, request for Higher-Level Review.

The issues on appeal were denied in a March 5, 2019, rating decision.  Within the one year period to file an appeal, the Veteran's recently retained representative submitted a request on February 13, 2020, requesting a 90 day extension to any filing deadlines for any issues pending.  The representative explained that time was needed to obtain the Veteran's claims file.  For the purposes of this claim, the extension request was tantamount to notice that the Veteran intended to file a response to the March 2019 rating decision.  VA failed to respond to the Veteran or his representative.  On March 18, 2020, over one year after the issuance of the rating decision but within the time requested for an extension, the Veteran submitted a Higher-Level Review (HLR) request in response to the March 2019 rating decision.  In November 2020, a HLR decision was issued denying the Veteran's request as untimely.  The Veteran filed a notice of disagreement (NOD) in March 2021, resubmitting the previously filed extension request.  The next day, VA notified that Veteran that his claim would continue to be developed.

Here, the Veteran timely requested in writing an extension to file a response to the March 2019 rating decision.  Along with the March 2021 NOD, the Veteran submitted evidence of this extension request.  The Board finds the evidence compelling.  The Veteran was aware of the time to file a response to the March 2019 rating decision, yet needed more time to ensure that his representative had opportunity to obtain clams file to ensure proper representation.  VA failed to respond to the Veteran or his representation.  Soon after receipt of the Veteran's claims file, the representative filed a completed Higher-Level Review request within the requested extension time.  As the Veteran acted promptly and within the requested extension time, the Board finds this to be good cause for extending the time to file the request for Higher-Level Review.   

In summation, good cause for delay in filing the request for Higher-Level Review ot the March 2019 rating decision has been shown.  The March 2020 request for Higher-Level Review was timely.  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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	DB