Ask Your VA Claims Questions | Read Current Posts
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
-
Similar Content
-
diabetes I am seeking information concerning possible herbicide(s) stored, used and spilled on Asco 1 2
By Gopher,
- 9 answers
- 2,243 views
-
- 1 answer
- 3,411 views
-
Sucess is Subjective, I think I won, and I am done. Late Entry: this was awarded 2016
By WmVeteran75-97,
- concurrent pay
- mst
- (and 2 more)
- 1 reply
- 1,128 views
-
- 11 answers
- 3,165 views
-
- 1 answer
- 1,248 views
-
Question
carlie
I find this BVA case interesting as it shows some ways BVA
looks at or doesn't consider the responsibilities of POA's when they screw up.
Of course the argument stands you can try to sue the POA at a later date. The question on that is,
a) how long and how much energy will this cost the claimant
b) will there be any monetary results
This case certainly shows that when you sign over your form for representation,
the bottom line for responsibility,is still in the claimants hands.
carlie
http://www4.va.gov/vetapp09/files3/0923959.txt
Citation Nr: 0923959
Decision Date: 06/25/09 Archive Date: 07/01/09
DOCKET NO. 07-31 352 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Whether a VA Form 9 (Appeal to Board of Veterans' Appeals)
addressing the claims for service connection for
posttraumatic stress disorder (PTSD), depression, and
infertility, received on April 25, 2007, was timely filed.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The Veteran served on active duty from March 1985 to March
1989.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2007 decision letter issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Seattle, Washington.
In a December 2009 rating decision, the RO granted service
connection for PTSD due to sexual assault with recurrent
chronic major depressive episodes. A 100 percent evaluation
was assigned as of April 25, 2007. At her April 2009 Travel
Board hearing, the Veteran raised the matter of whether an
earlier effective date for this grant was warranted. The
Board refers this matter back to the RO for appropriate
action.
FINDINGS OF FACT
1. The Veteran was notified of the unfavorable rating
decision denying service connection for PTSD, depression, and
infertility on November 22, 2005, and, on February 8, 2007,
the RO issued a Statement of the Case addressing these
claims, along with a letter explaining her appellate rights
and responsibilities; her VA Form 9, however, was not
received by the RO until April 25, 2007.
2. The Veteran did not make a request for an extension of
the 60-day time limit for the filing of a Substantive Appeal
prior to the expiration of that time limit.
CONCLUSION OF LAW
The VA Form 9 addressing the claims for service connection
for PTSD, depression, and infertility, received on April 25,
2007, was not timely filed. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 20.200, 20.302, 20.302, 20.304, 20.305 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board shall not entertain an application for review on
appeal unless it conforms to the law. 38 U.S.C.A. § 7108.
Under VA regulations, an appeal consists of a timely filed
Notice of Disagreement (NOD) in writing and, after a
Statement of the Case (SOC) has been furnished, a timely
filed Substantive Appeal. 38 C.F.R. § 20.200.
A Substantive Appeal consists of a properly completed VA Form
9 (Appeal to Board of Veterans' Appeals) or another
correspondence containing the necessary information. If the
SOC or any prior Supplemental Statement of the Case (SSOC)
addressed several issues, the Substantive Appeal must either
indicate that the appeal is being perfected as to all of
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. To the
extent feasible, the argument should be related to specific
items in the SOC and any prior SSOC.
The Board will construe
such arguments in a liberal manner for purposes of
determining whether they raise issues on appeal, but the
Board may dismiss any appeal which fails to allege specific
error of fact or law in the determination, or determinations,
being appealed.
The Board will not presume that an appellant
agrees with any statement of fact contained in an SOC or an
SSOC which is not specifically contested. Proper completion
and filing of a Substantive Appeal are the last actions the
appellant needs to take to perfect an appeal. 38 C.F.R.
§ 20.202.
Except in the case of simultaneously contested claims, a
Substantive Appeal must be filed within 60 days from the date
that the agency of original jurisdiction mails the SOC to the
appellant, or within the remainder of the 1-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.
§ 20.302(b)(1).
Also, except in the case of simultaneously contested claims,
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 § 19.31 of this title, that the
claimant be furnished an SSOC, then the time to submit a
Substantive Appeal shall end not sooner than 60 days after
such SSOC is mailed to the appellant, even if the 60-day
period extends beyond the expiration of the 1-year appeal
period. 38 C.F.R. § 20.302(b)(2); see also 38 U.S.C.A. §
7105(b)(1) and (d)(3); VAOPGCPREC 9-97 (Feb. 11, 1997).
Where an SSOC is furnished, a period of 30 days from the date
of mailing of the SSOC will be allowed for response. The
date of mailing of the SSOC will be presumed to be the same
as the date of the SSOC for purposes of determining whether a
response has been timely filed. Provided that a Substantive
Appeal has been timely filed in accordance with paragraph (b)
of this section, the response to an SSOC is optional and is
not required for the perfection of an appeal. 38 C.F.R.
§ 20.302©.
An extension of the 60-day period for filing a Substantive
Appeal, or the 30-day period for responding to an SSOC, may
be granted for good cause.
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 or the response to the SSOC.
The request for extension must be
filed with the Department of Veterans Affairs office from
which the claimant received notice of the determination being
appealed, unless notice has been received that the applicable
records have been transferred to another Department of
Veterans Affairs office.
A denial of a request for extension
may be appealed to the Board. 38 C.F.R. § 20.303. Except as
provided in 38 C.F.R. § 20.302(b), the filing of additional
evidence after receipt of notice of an adverse determination
does not extend the time limit for initiating or completing
an appeal from that determination. 38 C.F.R. § 20.304.
In computing time limits, 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 the
Department of Veterans Affairs. In calculating this 5-day
period, Saturdays, Sundays and legal holidays will be
excluded. This is commonly known as VA's "mailbox rule."
38 C.F.R. § 20.305(a).
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. § 20.305(b).
Where a veteran files a timely NOD, but fails to timely file
a Substantive Appeal, the appeal is untimely, and it is
proper for the Board to dismiss the claim. Roy v. Brown, 5
Vet. App. 554, 555 (1993).
In this case, the Veteran was notified of the unfavorable
rating decision denying service connection for PTSD,
depression, and infertility on November 22, 2005. Her timely
NOD was received by the RO in October 2006, and, on February
8, 2007, the RO issued a SOC addressing the three noted
claims, along with a letter explaining her appellate rights
and responsibilities.
A February 16, 2007 Report of Contact indicates that the
Veteran spoke with an RO employee and was requested to
provide details of an in-service PTSD stressor. It appears
that the Veteran initiated the call, as the VA employee
described identifying herself "to the caller," and the
Veteran also reported during her April 2009 hearing that she
initiated the call. The employee noted the following:
Veteran has appeal in process. She has
the form 9 and states that she has
provided all the information she has.
She thinks we have all the information to
substantiate her claim. She is trying to
locate a fellow service woman to make a
statement.
The claims file contains two submissions from the Veteran,
both date-stamped by the RO as having been received on April
25, 2007.
The first is a hearing request dated February 22,
2007. The second is a VA Form 9 dated March 28, 2007. Both
also have an unidentified "received" date stamp of April
12, 2007 in addition to the later RO date stamp.
During the
April 2009 hearing, the Veteran's representative confirmed
that the earlier date stamp was that of her veterans service
organization.
The Veteran's representative further noted at
the hearing that "there were some administrative problem
with the mail runs" at the field office at the VA medical
facility in American Lake (Tacoma), Washington and delays in
getting mail from the field office to the Federal building in
Seattle.
The Veteran indicated that she mailed her submissions to her representative.
In August 2007, the RO notified the Veteran that her VA Form
9, received on April 25, 2007 was untimely and that the
submission received on that date would be considered a
request to reopen a previously denied claim. The Veteran's
present appeal arose from this determination.
As noted above, the RO has since granted service connection
for PTSD with recurrent chronic major depressive episodes,
with the Veteran nevertheless pursuing this timeliness appeal
in furtherance of receiving an earlier effective date for the
grant of a 100 percent evaluation for her disorder. It is
not entirely clear from the record whether she has intended
to pursue this appeal with regard to the infertility issue,
but, absent any clear indication of a withdrawal of this
issue from appeal, the Board will presume that it remains
part of the appeal.
In reviewing the evidence of record, the Board finds no
indication of a VA Form 9 or equivalent submission from the
Veteran that was received by the RO prior to April 25, 1997.
The only communication between the Veteran and the RO during
the period between February 8 and April 25 of 2007 was the
February 2007 Report of Contact, which does not indicate that
the Veteran clearly expressed an intention to perfect her
appeal.
Rather, it was merely noted that she had an "appeal
in process" and possession of a VA Form 9, without any
indication of whether she would take the next step of
submitting the VA Form 9.
Given the earlier unidentified date stamps on the two
submissions from the Veteran and her credible testimony that
she furnished these submissions to her representative's
American Lake field office, it appears that both documents
were in the possession of her representative for some period
of time before being received by the RO.
The fuller
description of this set of circumstances, however, at the
hearing does not change the fact that the RO did not receive
either document until April 25, 2007. See Anderson v. Brown,
9 Vet. App. 542, 547 (1996) (citing Brown v. Brown, 8 Vet.
App. 40 (1995) for the proposition that, by filing a VA Form
21-22, an appellant authorizes a service representative to
act on his or her behalf and is bound by the acts of the
service representative); see also 38 C.F.R. § 20.602.
A further assertion from the Veteran concerns the
applicability of the "mailbox rule" of 38 C.F.R. § 20.305
in this case.
This rule does warrant consideration insofar
as the postmark of the Veteran's Substantive Appeal is not of
record. The Board notes, however, that the length of time
from February 8 to April 25 in 2007 was 76 days. Even when
applying the "mailbox rule," and taking into account two
weekend days (April 21 and 22), there would still be a
passage of 69 days, well in excess of the 60-day response
period required by 38 C.F.R. § 20.302(b)(1).
Moreover, while
the Veteran's representative cited to "a holiday in there"
during the April 2009 hearing, the Board must point out that
the only holiday in April 2007, Easter Sunday, fell on April
8. In short, the VA Form 9 was untimely even with
application of the "mailbox rule."
The Veteran's representative also argued that "if there was
a piece of evidence to be found," the 60-day clock should be
set again.
In this case, however, the Veteran submitted no
evidence between February 8 and April 25 of 2007, and there
was no basis for the issuance of an SSOC. As such, 38 C.F.R.
§ 20.302 and VAOPGCPREC 9-97 (Feb. 11, 1997) do not apply in
this instance.
The final question for the Board is whether there was "good
cause" to support an extension of the Veteran's appeal
period. She testified at her April 2009 hearing that she
went through a great deal of difficulty in early 2007,
including having multiple medical appointments for diabetes
mellitus, dealing with her father's declining health as a
full-care provider, and experiencing recurrent PTSD
symptomatology.
She did confirm receipt of the February 2007
SOC. The Board observes, however, that a request for an
extension of the 60-day period must be in writing and must be
made prior to expiration of the time limit for filing the
Substantive Appeal. In this case, however, no such request
was made during the noted time period.
As a final matter, the Board notes that this case is readily
distinguishable from Percy v. Shinseki, No. 05-2961 (U.S.
Vet. App. Apr. 17, 2009), in which the United States Court of
Appeals for Veterans Claims (Court) determined that VA may
waive any issue of timeliness in the filing of the
Substantive Appeal, either explicitly or implicitly, and is
not required to close an appeal for failure to file a timely
Substantive Appeal.
In Percy, however, the RO certified the
issue in question to the Board on appeal. In the present
case, it is the question of the timeliness of the appeal that
has been certified to the Board. Accordingly, the recent
Percy decision does not affect the outcome in this matter.
In short, no Substantive Appeal was filed within 60 days of
the issuance of the February 8, 2007 SOC or within the
remainder of the one-year period following the date of
notification of the determination being appealed.
Accordingly, the appeal is dismissed.
ORDER
The appeal is dismissed.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
Link to comment
Share on other sites
Top Posters For This Question
1
1
1
1
Popular Days
Jan 4
7
Top Posters For This Question
carlie 1 post
Philip Rogers 1 post
free_spirit_etc 1 post
jbasser 1 post
Popular Days
Jan 4 2010
7 posts
6 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now