BVA9505322 
DOCKET NO.  92-16 061     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

Whether the veteran has timely appealed from a decision which
denied entitlement to VA outpatient dental treatment.

REPRESENTATION

Appellant represented by: AMVETS

ATTORNEY FOR THE BOARD

R. T.  Jones, Counsel

INTRODUCTION

The veteran had active service from January 1944 to May 1946.

This matter initially came to the Board of Veterans' Appeals
(Board) from a decision which denied the veteran Department of
Veterans Affairs (VA) outpatient dental treatment.  In September
1990, the veteran claimed outpatient dental treatment.  In
September 1990, the VA Outpatient Clinic (OPC) in Columbus, Ohio,
asked the VA Regional Office (RO) in Cleveland, whether the
veteran was eligible for treatment on the basis of being service
connected for dental trauma.  A January 1991 RO dental rating
held that there was no service-connected dental trauma, and the
RO so informed the OPC in January 1991.  On February 8, 1991, the
OPC sent the veteran a letter which told him he was ineligible
for VA outpatient dental treatment under any relevant category of
the law.  In August 1991, the RO received a letter from the
veteran in which he expressed disagreement with the OPC
determination.  The RO wrote the veteran in November 1991 and
told him the OPC determination was correct, and that he was
ineligible for VA outpatient dental treatment.  In November 1991,
the RO received another letter from the veteran in which he again
disagreed with the determination.  A statement of the case was
issued by the RO on December 9, 1991.  The veteran's substantive
appeal (VA Form 1-9) was received by the RO on March 30, 1992.

In November 1993, the Board remanded the case to the RO for
consideration of the question of whether the veteran had timely
appealed the decision to deny VA outpatient dental treatment,
particularly whether there was a timely substantive appeal.

In January 1994, the RO held that the veteran had not filed a
timely appeal of the February 1991 decision denying VA outpatient
dental treatment.  The case was thereafter procedurally developed
for Board review of the issue of timeliness of the appeal.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran asserts that he did not timely appeal the denial of
VA outpatient dental treatment because he was out of state from
December 1991 until March 1992, during which time he was
traveling with and managing a band.  He asserts that he should be
treated for service-connected teeth.

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 did not timely perfect his appeal.

FINDING OF FACT

A claim for VA outpatient dental treatment was denied by the VA
OPC and the veteran was notified of this decision on February 8,
1991; following submission of a notice of disagreement, a
statement of the case was furnished to the veteran on December 9,
1991; the veteran did not thereafter make a timely request for an
extension of the time for filing a substantive appeal; and his
substantive appeal was received by the VA on March 30 1992.

CONCLUSION OF LAW

The veteran did not submit a timely substantive appeal from the
February 1991 OPC decision which denied his claim for VA
outpatient dental treatment, and thus the Board lacks authority
to review the claim.  38 U.S.C.A. §§ 7105, 7108 (West 1991); 38
C.F.R. §§ 20.200, 20.302, 20.303 (1994).

REASONS AND BASES FOR FINDING AND CONCLUSION

The issue is whether the veteran filed a timely appeal from a
February 1991 decision by the OPC which denied his claim for VA
outpatient dental treatment.

An appeal consists of a timely filed notice of disagreement and,
after a statement of the case has been furnished, a timely filed
substantive appeal.  For a notice of disagreement to be timely,
it must be filed within one year of the date that the agency of
original jurisdiction (e.g., an OPC or RO) mails notice of the
adverse determination.  For a substantive appeal to be timely, it
must be filed within 60 days from the date that the agency of
original jurisdiction mails the statement of the case, or within
the remainder of the one-year period from the date of mailing of
the notification of the adverse determination being appealed,
whichever period ends later.  38 U.S.C.A. § 7105; 38 C.F.R.
§§ 20.200, 20.302.  An application for review on appeal shall not
be entertained by the Board unless it is in conformity with these
provisions.  38 U.S.C.A. § 7108.

On February 8, 1991, the OPC mailed notification to the veteran
of the adverse decision on his claim for VA outpatient dental
treatment.  In August and November 1991, the veteran submitted
letters to the RO, expressing disagreement with the decision, and
either one of these letters represents a timely notice of
disagreement.  The statement of the case was sent to the veteran
on December 9, 1991.  The cover letter to that document told him
that he had to file a substantive appeal (on an enclosed VA Form
1-9); that his appeal would be closed if he did not respond
within 60 days; and that if he needed more time to file he should
see the relevant instruction on VA Form 1-9 (the instruction
notes the 60 day time limit for filing the substantive appeal,
with an extension permitted for good cause).

The veteran's substantive appeal (which he signed and dated March
11, 1992), was not received by the RO until March 30, 1992.  This
is clearly untimely, as it was submitted more than 60 days after
the December 9, 1991 statement of the case was

sent to him, and subsequent to the one year period following the
February 8, 1991 notice of the adverse decision (which period
expired February 8, 1992).  In the absence of a timely
substantive appeal, the Board has no authority to provide
appellate review of the local determination which denied the
claim for VA outpatient treatment.  Roy v. Brown, 5 Vet.App. 554
(1993).

The veteran states he did not timely appeal the case because he
was out of the state, traveling with and managing a band, during
the time in question.  The law does permit an extension of the
time for filing the substantive appeal, for good cause shown.
38 U.S.C.A. § 7105(d)(3).  The accompanying regulation, however,
mandates that an extension must be requested in writing prior to
the expiration of the time limit for filing the substantive
appeal.  38 C.F.R. § 20.303; Roy, supra.  No such timely request
was made by the veteran, and it is also doubtful that being away
from home with a traveling band would constitute good cause,
given that the substantive appeal could have been mailed by the
veteran from any location.

In view of the untimely filed substantive appeal, the Board has
no jurisdiction to entertain the appeal from the February 1991
OPC decision which denied entitlement to VA outpatient dental
treatment, and the appeal must be dismissed.

ORDER

The appeal is dismissed as being untimely.

          L. W. TOBIN
          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.