BVA9502150 DOCKET NO. 93-08 892 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from April 1969 until December 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1990, from the White River Junction, Vermont, regional office (RO) which denied service connection for PTSD. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting service connection for PTSD. He contends that he was involved in an unfortunate accident in Vietnam which he has been unable to forget and now suffers from symptoms of PTSD which warrants entitlement to service-connected benefits. 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 appellant did not file a timely appeal. FINDINGS OF FACT 1. A September 1990 rating decision by the RO denied entitlement to service connection for PTSD. 2. The veteran was notified of the above determination by letter dated October 19, 1990. 3. The RO received a notice of disagreement on October 26, 1990, and issued a statement of the case on November 14, 1990. 4. A hearing was held in December 1990 and by letter dated January 16, 1991, the veteran was notified of the hearing officer's decision affirming the denial. 5. By letter dated January 18, 1991, the RO informed the veteran that he must complete and return the enclosed VA Form 1-9 in order for his appeal to be sent to Washington, D.C. for review. 6. A Form 1-9, signed by the representative and dated October 15, 1992, was submitted. CONCLUSION OF LAW A timely appeal was not filed. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran filed a claim for service connection for PTSD in June 1990. The RO denied his request by a rating action in September 1990 and notified him by letter dated October 19, 1990. He filed a notice of disagreement in October 1990 and requested a hearing. The RO issued a statement of the case in November 1990 and a hearing was held in December 1990. On January 16, 1991, the RO notified the veteran of the hearing officer's decision affirming the denial. By letter dated January 18, 1991, the RO informed the veteran that he must complete and return the enclosed VA Form 1-9 in order for his appeal to be sent to Washington, D.C. for review. The letter further stated that the "evidence" should be submitted preferably within 60 days or "it must be received in the Department of Veterans Affairs within one year from the date of this letter; otherwise, benefits (if entitlement is established) may not be paid prior to the date of its receipt." In May 1992, the veteran requested to reopen his claim for PTSD based on recent medical treatment and asked that his file be forwarded to his representative for review. The veteran's representative wrote a letter dated in July 1992 that the case was in "an appellate procedure with a Statement of Accredited Representative dated January 17, 1991" and noted that a Form 1-9 had not been filed. The representative wrote that a memorandum had been sent to the veteran requesting that he submit said form. A Form 1-9, signed by the representative and dated October 15, 1992, was subsequently submitted. The substantive appeal form only requested that the file be referred to the representative for preparation of the appeal. The RO issued a rating in October 1992 which confirmed and continued the previous denial and issued a supplemental statement of the case. The claims file was subsequently transferred to the Board for appellate review. Upon review, we find that the appellant did not file a timely appeal nor did he file a timely request for an extension. Although appellant timely filed a notice of disagreement objecting to the denial of service connection for PTSD and was issued a statement of the case, a substantive appeal was not filed until October 1992. The formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a notice of disagreement and a formal appeal. Roy v. Brown, 5 Vet.App. 554 (1993). Appellate review of an RO decision is initiated by an NOD and "completed by a substantive appeal after a statement of the case is furnished. . . ." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). After an appellant receives the SOC, he must file a formal appeal within "sixty days from the date the [SOC] is mailed," 38 U.S.C.A. § 7105(d)(3) (West 1991), or within the remainder of the one-year period from the date the notification of the RO decision was mailed, whichever period ends later. 38 C.F.R. § 20.302(b) (1992); see Rowell v. Principi, 4 Vet.App. 9, 17 (1993); Cuevas v. Principi, 3 Vet.App. 542, 546 (1992) (where claimant did not perfect appeal by timely filing substantive appeal, RO rating decision became final). By regulation, this formal appeal must consist of either a Department of Veterans Affairs (VA) Form 1-9, or correspondence containing the necessary information. 38 C.F.R. § 20.202 (1992). The formal appeal permits the appellant to consider the reasons for an adverse RO determination, as explained in the SOC, and to formulate and present 'specific arguments relating to errors of fact or law' made by the RO. Id.; see 38 U.S.C.A. § 7105(d)(3). Roy v. Brown, 5 Vet.App. 554, 555 (1993). Further, the Court distinguished Rowell (which held that the RO and the Board implicitly waived the timely filing requirement) and stated that it cannot "draw a conclusion that the RO or the Board, generally, and in all cases, has discretion to waive the express provisions of section 20.303 (supra)." The time period may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105(d)(3) (West 1991). The accompanying regulation provides that An extension of the 60-day period for filing a substantive appeal or the 60-day period for responding to a Supplemental Statement of the Case . . . may be granted for good cause shown. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal. 38 C.F.R. § 20.303 (1994). We do not find that the veteran filed a request for an extension of time within the applicable time period. A Statement of Accredited Representative dated January 17, 1991, had been submitted stating that a timely appeal statement was submitted by the veteran in which he exercised his rights of due process and requested a personal appearance. Our review shows that a substantive appeal had not been submitted, but rather, a notice of disagreement with the rating decision initiating the appeal which included the request for a personal appearance. In July 1992, the veteran's representative wrote that the claim was "in appellate procedure," noting that a Form 1-9 had not been filed. A substantive appeal, dated in October 1992, was subsequently submitted. The date of mailing of the letter of notification of the September 1990 determination was October 19, 1990. The substantive appeal was not timely filed as it was submitted on October 15, 1992, more than one year after notification of the September 1990 rating decision and more than 60 days after the statement of the case was mailed. We conclude that the veteran did not file a timely formal appeal. Accordingly, he is statutorily barred from appealing the RO decision. His only recourse at this point is to obtain new and material evidence with which to reopen the claim. ORDER The appeal is dismissed. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME 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.