diabetes Even With A Representative

[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

[free_spirit_etc]

Interesting case.

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.

[Philip Rogers]

I don't know how the VA gets away w/it. SSDI allows 4 yrs for before a decision becomes final and if the claimant wasn't represented and had a mental condition that can be waived. In this case she can just refile w/new evidence but, unfortunately, will lose the original claim date and all that retro.

pr

[jbasser]

Carlie has stressed the most important point here.

It does not matter who you have as a VSO, These folks are Human and they are extremely overloaded and mistakes are going to happen.

Stay on top of your claim. Reserve the right to make all final decisions. Write it on the POA.

It can be done because I actually did it.

J

[Pete53]

I filed my claim in 1991, By 1992 I took over the management of my claim my first VSO who I love like a Brother helped me the whole way but he was to busy to follow his own suggestions. I ASKED HIM EARLY ON IF HE WANTED COPIES OF MY FILINGS AND HE SAID NO HE KEPT NO FILES EXCEPT A SMALL 2 OR 3 PAGE FOLDER WITH GENERAL INFO ON EACH OF HIS CLIENTS.

Sorry for CAPS

[jerrbilly]

I feel it's good to have a rep but I also have learned I have to pro-active with my claim. If my DAV rep tells me I need an IMO but I don't make an attempt to get one then the fault lies on me. If he/she tells me the VA needs current medical notes I will go down to my VAMC and do a release right away (same day usually). Remember, even though the VA can easily get your VA medical records doesn't mean they always do and it may be those latest notes that get your condition granted an increase.

I have learned that being pro-active can mean the difference between getting denied and being granted. I learned the hard way though.

I look at my rep as being "informative and knowledgible" with that being their duty in representing me. Letting me know what I need to get my claim granted is all I need to know. I don't mind doing the ground work since it's only in MY best interest in doing so. I consider myself as the only beneficiary in the whole situation so it's only right I do what's asked.

Jerr

Edited January 4, 2010 by jerrbilly

[Berta]

The BVA has made the point in one BVA decision if not in more of them

that the claim's process is not a one way street.

The VCAA has made it possible for VA to state in writing ,usually within a few months after a claim is filed, exactly what evidence they want.

The BVA,in remanded claims, tells the VA what to try to obtain etc- but no reason why the claimant cannot attempt to get this info too-they might get it faster then the VA could and then again-the VA might even ignore the remand anyhow.