93 Decision Citation: BVA 93-12359 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-06 292 ) DATE ) ) ) THE ISSUE Timeliness and perfection of appeal. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.N. Schwartz, Counse INTRODUCTION The veteran served on active duty from January 1970 to June 1973. This matter came before the Board of Veterans' Appeals (here- inafter Board) on appeal from an August 1990 rating decision from the Denver Colorado, Regional Office (hereinafter RO). The rating decision confirmed and continued the denial of service connection for lumbosacral strain. The decision also denied service connection for a left knee disorder, an upper back disorder, defective hearing, tinnitus, a closed head injury and headaches. A notice of disagreement was received on September 20, 1990. A statement of the case was issued on November 19, 1990. VA Form 1-9 was received on March 21, 1991. The document failed to address any of the issues on appeal. The veteran failed to report for hearings scheduled for June 4, 1991, August 22, 1991, and October 8, 1991. A supplemental statement of the case was issued on September 10, 1991. Another hearing was scheduled for November 5, 1991. The veteran failed to report. The veteran's representative entered additional written argument dated March 25, 1992. The case was received at the Board on April 30, 1992, and docketed on May 4, 1992. The same day the case was referred to the veteran's representative, Disabled American Veterans. That organization submitted additional written argument to the Board on July 23, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran did not enter contentions in regard to the issues on appeal. On behalf of the veteran it was argued that the veteran complained of a back injury in service and a left knee injury as a result of playing football. It was also noted that the veteran had complaints of headaches as a result of a head injury. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the veteran did not timely perfect his appeal. FINDING OF FACT The veteran did not enter any allegation of error of law or fact in the RO determination being appealed within one year of date of notification of the determination or within 60 days of the issuance of the statement of the case. CONCLUSION OF LAW The veteran did not submit a timely substantive appeal of the August 1990 RO determination. Accordingly, the request for review on appeal is dismissed. 38 U.S.C.A. §§ 5107, 7105, 7108 (West 1991); 38 C.F.R. §§ 20.202, 20.302 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered is whether the veteran has timely entered an appeal of the August 1990 rating decision which denied service connection or continued the denial of service connection for a left knee disorder, an upper back disorder, lumbosacral strain, defective hearing, tinnitus, a closed head injury and headaches. If he has not, the appeal may fail. See Rowell v. Brown, 4 Vet.App. 9 (1993). The VA imposes few duties on the veteran seeking VA compensation. Among those duties is the duty to submit a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Assuming the existence of a well-grounded claim, the veteran has a duty to express his disagreement with a decision of the VA and to timely perfect his appeal. His first burden is to submit a notice of disagreement within one year of date of mailing of the notification of the initial review and determination. In this case, a notice of disagreement, which failed to identify the disabilities in question, was received on September 20, 1990. On November 19, 1990, the regional office mailed the statement of the case to the appellant. Specifically, the veteran was informed: Your argument or "Substantive Appeal" should be set out on the attached VA Form 1-9. If there is anything you do not understand about the instructions on the form, we will gladly explain. The important things are to say, in your own words, what benefit you want; what facts in the statement you disagree with; and any error you believe we made in applying the law. The facts stated are especially important since we will assume you agree with any statement of fact to which you take no exception. In response to the statement of the case, VA Form 1-9 was received on March 21, 1991. Except for requesting a personal hearing, the form was blank. We further note that the veteran failed to report for hearings scheduled for June 4, 1991, August 22, 1991, October 8, 1991, and November 5, 1991. The law provides: Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished....Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination.... If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title. Where the claimant, or the claimant's representative, within the time speci-fied in this chapter, files a notice of disagreement with the decision of the agency of original jurisdiction....such agency shall prepare a statement of the case. The claimant will be afforded a period of sixty days from the date of the statement of the case is mailed to file the formal appeal.... The agency of original jurisdiction may close the case for failure to respond after receipt of the statement of the case, but questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals. 38 U.S.C.A. § 7105 (West 1991). The closing for failure to respond to a statement of the case is an automatic, administrative function performed at the regional office and is not intended to confer additional rights. See M21-1 Part II and Part IV (1992). The "PIF" suspense date changes every time one of the status codes is entered. The suspense dates generated are calculated from the disposition date generated or entered. A time period of 60 days is automatically entered following the date a statement of the case is mailed. M21-1, 7.08. "Code 53" will automatically generate at the end of the second month following the month the SOC (statement of the case) was issued unless there was an intervening entry. M21-1, 7.07. When VA Form 9 has been furnished with the SOC and no response is received from the claimant or representative within the required time, VA takes no further action and no additional control is established. If a response is subsequently received within the original appeal period (emphasis added) the appeal will be processed. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. "The request must be in writing and must be made before the expiration of the time limit." M21-1, 8.15 The language contained in the law that questions as to timeliness shall be determined by the Board of Veterans' Appeals is controlling. 38 U.S.C.A. § 7105; M21-1, 8.15. Regulations provide that a substantive appeal "consists of a properly completed VA Form 1-9, 'Appeal to Board of Veterans' Appeals,' or correspondence containing the necessary information. If the statement of the case and any prior supplemental statements of the case addressed several issues, the substantive appeal must either indicate that the appeal is being perfected as to all those issues or must specifically identify the issues appealed. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed....the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations being appealed." 38 C.F.R. § 20.202 (1992). The Board of Veterans' Appeals must conclude that an essentially blank VA Form 1-9 does not constitute a substantive appeal inasmuch as it contains no allegation of error of fact or law in the determination being appealed. If we were to assume that the scheduling of a personal hearing would extend the time period for submitting a substantive appeal or testimony in lieu of a substantive appeal, the veteran's failure to appear for the hearings renders the argument moot. Law and regulations establish reasonable times within which to act. The veteran's actions (or inactions) are inherently unreasonable and the time period for entering a properly completed substantive appeal is long past. Although the veteran's representative subsequently entered additional written argument, the argument was long after the time period for entering a substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302. If there is a failure to comply with the law or regulations, it is incumbent on the Board to reject the application for review on appeal. 38 U.S.C.A. § 7105, 7108. The veteran's blank VA form 1-9 did not constitute a completed substantive appeal, and other documentation which could have been accepted in lieu of a substantive appeal was not received. Clearly, the Board has the authority to determine timeliness and adequacy of an appeal. In the absence of a timely completed substantive appeal, the petition for appellate review is rejected in accordance with 38 U.S.C.A. § 7108. Inasmuch as the Board has made a determination as to the absence of allegations of error of fact or law and not as to the adequacy of any such allegations, the provisions of 38 C.F.R. § 20.203 (1992) are not for application. ORDER The petition for appellate review is dismissed. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 URSULA R. POWELL PAUL M. SELFON, M.D. LAWRENCE M. SULLIVAN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.