Citation Nr: 25005235 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 19-19 084A DATE: April 17, 2025 ORDER The appeal as to whether the Appellant filed a timely VA Form 9 substantive appeal in response to a July 2016 statement of the case, for substitution purposes, is granted. FINDING OF FACT 1. The agency of original jurisdiction (AOJ) issued a January 2014 rating decision, denying the Veteran's claims. After receipt of an April 2014 Notice of Disagreement (NOD), the AOJ issued a Statement of the Case (SOC) on January 13, 2016, continuing the denial of the Veteran's claims. 2. Resolving all doubt in favor of the Appellant, the Veteran first received the January 13, 2016 SOC on July 14, 2016, after calling VA to request a copy. 3. VA received a substantive appeal (VA Form 9) on July 18, 2016, within 60 days of the July 14, 2016 receipt date of the January 13, 2016 SOC. CONCLUSION OF LAW The Appellant filed a timely substantive appeal (VA Form 9) appealing a January 2014 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 20.200, 20.202, 20.300, 20.302, 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from July 1971 to July 1974 and November 1975 to February 1976. Unfortunately, he passed away in August 2024 while this appeal was pending. The Appellant, a valid substitute, is the Veteran's surviving spouse. By way of background, in January 2014, the AOJ issued a rating decision that: denied a rating higher than 50 percent for depressive disorder, denied service connection for posttraumatic stress disorder, denied a rating higher than 50 percent for amputation, left index finger and ring finger, and denied a compensable rating for bilateral hearing loss. The Veteran timely filed an NOD in April 2014 and the AOJ issued an SOC in January 2016 that, again, denied the Veteran's claims. The Veteran filed a VA Form 9 substantive appeal in July 2016 and, in July 2016, the AOJ issued a decision that the Veteran's VA Form 9 was untimely and could not be accepted. The Veteran appealed that decision to the Board of Veterans' Appeals (Board). In October 2022, the Board issued a decision finding that the Veteran's July 2016 VA Form 9 was not timely filed. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In August 2024, CAVC issued an order granting a joint motion for remand (JMR) in which the parties agreed the Board failed to provide an adequate statement of reasons or bases for its decision. Specifically, the Board erred by failing to adequately address the Appellant's argument that, because the January 2016 SOC failed to properly include the Appellant's private attorney's address, pursuant to the VA Adjudication Procedures Manual, M21-1, VA is not entitled to the presumption of regularity and it is unclear if the Veteran, the Appellant, and/or their attorney received a copy of the January 2016 SOC prior to July 14, 2016. In August 2024, the Appellant was sent a letter stating that she had 90 days to submit additional argument in support of her appeal. Those 90 days have expired, and this appeal is now properly before the Board. Timeliness of the VA Form 9 substantive appeal. A legacy appeal consists of a timely filed 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 for a legacy 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 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); 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). Here, the Veteran timely filed an NOD in April 2014 in response to a January 2014 rating decision. On June 6, 2016, the Veteran filed correspondence indicating that: Per a recent telephonic inquiry to the VA concerning the status of the claimant's appeal, the VA representative verbally confirmed that a decision had been issued in the claimant's case. Since this office has yet to receive a copy of the decision, request is herein made that the decision be forwarded to this office immediately and without delay. As you are aware, good cause for any late filing of an appeal is warranted should this office fail to timely receive a copy of the decision. The Appellant's representative sent letters to VA in April 2016 and June 2016 requesting updates on the case. On July 14, 2016, a Report of General Information reports that, in response to a request received, VA provided the Veteran a copy of the January 13, 2016 SOC. On July 18, 2016, the Veteran filed a VA Form 9, substantive appeal. The Veteran acknowledged that the SOC was dated January 13, 2016, but argued that neither he nor his representative received a copy of the January 13, 2016 SOC. The Veteran further argued that he was not aware the SOC was issued until he received a letter from his senator's office which prompted him to call VA to inquire about the SOC. The Veteran argued then, and the Appellant argues now, the Veteran did not receive a copy of the SOC until July 14, 2016. The January 2016 SOC included the Veteran's address on file, with a notation indicating a copy was sent to the Veteran's representative. The SOC does not include an address for the representative. There is nothing in the file to indicate whether this SOC was delivered to the Veteran or his representative. The Board notes the Veteran's, and now the Appellant's, arguments have been consistent for the past decade. Although there is no evidence the January 2016 SOC was marked as returned mail, there is also not evidence the SOC was delivered to the Veteran and his representative. The Appellant's arguments are also consistent with the evidence of record; the Appellant's representative requested appeal updates in April 2016 and June 2016. Such requests would have presumably not been necessary had the Appellant's representative been aware that an SOC was issued in January 2016. A July 14, 2016 Report of General Information and accompanying correspondence confirms VA received a request for the January 2016 SOC. Four days later, the Veteran filed a VA Form 9 Substantive Appeal. Thus, resolving all doubt in favor of the Appellant, the Board finds it plausible that the Veteran did not receive a copy of the January 2016 SOC until July 14, 2016. Thus, VA received a substantive appeal (VA Form 9) on July 18, 2016, within 60 days of the July 14, 2016 receipt date of the January 13, 2016 SOC. As there is no jurisdictional bar to the Board's consideration of an untimely substantive appeal, resolving all doubt in favor of the Appellant, the Board finds the July 18, 2016 VA Form 9 to be timely. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Accordingly, objection to the timeliness of the VA Form 9 is waived and the appeal is granted. The case shall return to the AOJ for issuance of a supplemental statement of the case and subsequent certification to the Board. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Feistritzer, 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.