BVA9506493 DOCKET NO. 93-13 814 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for the residuals of pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from February 1948 to June 1948 and from November 1952 to August 1954. Service connection for residuals of pneumonia was initially denied by the regional office (RO) in a rating action of April 1984. The denial of service connection was upheld by the Board of Veterans' Appeals (Board) in a November 1985 decision. In a reconsideration decision, issued in July 1986, the Board held that there was no error in the November 1985 decision and that the prior decision was supported by the evidence of record at that time. In February 1987, the veteran filed a claim to reopen the previously denied claim for service connection. By rating action of May 1987, it was determined that no new and material evidence had been submitted to reopen the claim. The veteran filed a notice of disagreement with this action and was given a statement of the case. Subsequently, he failed to file a substantive appeal. In October 1991, the veteran filed a claim to reopen the previously denied claim for service connection for a respiratory disorder. The RO determined that new and material evidence had not been submitted to reopen the claim. The veteran has filed a notice of disagreement with this action and the case has been forwarded to the Board for appellate consideration. Subsequent to the appeal being certified to the Board, the veteran submitted additional evidence directly to the Board, through his Congressional representative, for consideration. Although the veteran did not waive initial consideration of this evidence by the Department of Veterans Affairs (VA) Regional Office (RO), the Board has reviewed this evidence in conjunction with 38 C.F.R. § 19.37(b) (1994) and, in light of the determination made on the veteran's appeal, has determined that remand to the RO is not required. CONTENTION OF APPELLANT ON APPEAL The veteran contends that he had pneumonia while in service from February 1948 to June 1948 that caused him to have chronic bronchitis from the time of his discharge to the present. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's substantive appeal was not timely filed and the Board is without jurisdiction of the appeal. FINDING OF FACT The veteran did not file a substantive appeal within 60 days of the May 7, 1992, statement of the case or within one year of the March 26, 1992, notice that his claim to reopen was denied. CONCLUSION OF LAW The veteran did not file a timely substantive appeal on the denial of his claim to reopen his claim for service connection. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case is furnished to the veteran. See 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). The notice of disagreement must be filed within one year from the date of mailing of the notice of the determination. See 38 U.S.C.A. § 7105(b)(1). The substantive appeal must be filed within 60 days from the date the statement of the case is mailed, or within the remainder of the one year period from the date of mailing of the notice of determination, whichever occurs later. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). In the absence of a properly perfected appeal, the Board is without jurisdiction to determine the merits of the case. See 38 U.S.C.A. § 7105; Roy v. Brown, 5 Vet.App. 554 (1993). The veteran was notified by letter of March 26, 1992, that his request to reopen the claim for service connection for the residuals of pneumonia was denied. He filed a notice of disagreement in April 1992. A statement of the case was sent to the veteran on May 7, 1992. The veteran filed a VA Form 1-9, Appeal to Board of Veterans' Appeals, on April 19, 1993. The VA Form 1-9 was not filed within 60 days of the statement of the case and was not filed within one year of the date the notice of determination was issued to the veteran. The veteran neither requested nor was granted an extension of the time limit for filing the appeal. Communication from the veteran in September 1992 concerned his request for a hearing. A hearing was scheduled in January 1993 but the veteran was not able to attend. In January 1993, the veteran's representative requested scheduling at a future date. He indicated that the veteran was awaiting new and material evidence which would be pertinent to his claim. At no time, did the veteran or his representative indicate the error or fact or law in the decision being appealed. The Board of Veterans' Appeals (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. Proper completion and filing of a substantive appeal are the last actions the appellant needs to take to perfect an appeal. 38 U.S.C.A. § 7105(d)(3) and (5) (West 1991); 38 C.F.R. § 20.202 (1994). The veteran submitted additional medical evidence and testified at an RO hearing in April 1993. The RO Hearing Officer confirmed the denial of the request to reopen and notice of that determination was provided to the veteran in a supplemental statement of the case issued to the veteran in May 1993. The veteran did not file a notice of disagreement in response to the supplemental statement of the case that confirmed the denial of his request to reopen. Although the RO continued to develop the veteran's appeal as if it were timely filed, that action is not sufficient to confer or restore appellate jurisdiction that does not by statute or regulation exist. The veteran's untimely appeal, however, should be considered a subsequent request to reopen the previously denied claim and processed accordingly. ORDER The veteran's claim to reopen the previously denied claim for entitlement to service connection for the residuals of pneumonia is dismissed. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.