BVA9500117 DOCKET NO. 93-09 170 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a substantive appeal was timely filed. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. A Caffery, Counsel INTRODUCTION The veteran served on active duty from December 1949 to December 1953 and from February 1954 to December 1955. This is on appeal from a November 1992 decision by the Department of Veterans Affairs (VA) Regional Office St. Petersburg, Florida, which held that the veteran had not timely submitted a substantive appeal following his disagreement with a June 1991 rating action denying entitlement to an increased evaluation for his intestinal disorder and to a total rating based on individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that his substantive appeal should be considered as having been timely filed since in a January 1992 letter, the regional office informed him that he had until September 9, 1992, to perfect his appeal. The veteran's substantive appeal was received by the regional office on September 10, 1992, at 8 a.m., indicating that it was received in the previous day's mail. In addition, the veteran has submitted a statement from a postmaster indicating that the average mail time from his city of residence to the VA regional office is two days. It is further maintained that under 38 C.F.R. § 20.305, a response postmarked prior to the expiration of the applicable time limit is accepted as having been timely filed. That regulation further provides that if the post mark is not of record, the post marked date is presumed to be five days prior to the date of receipt of the document by the VA. It is indicated that in his particular case, the post marked envelope showing when the document was mailed is not of record. Thus, the substantive appeal should be considered as having been timely submitted. 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 timely submitted and his appeal from the June 1991 rating action denying entitlement to an increased evaluation for his intestinal disorder and to a total rating based on individual unemployability was perfected. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. In March 1991, the veteran submitted a claim for an increased evaluation for his intestinal disorder and a claim for a total rating based on individual unemployability due to service- connected disability. 3. By a rating action dated in June 1991, the above benefits were denied by the regional office. The veteran was notified of the decision on June 19, 1991. 4. In September 1991, the veteran submitted a notice of disagreement with the rating action. He was sent a statement of the case on the matter on September 26, 1991. 5. In January 1992, the regional office advised the veteran that he had been granted a 60-day extension on his appeal in accordance with his request. 6. He was informed that if they did not hear from him within 60 days from the date of the letter, they would assume that he did not intend to perfect his appeal and the records would be closed. He was further informed in any event he had until September 9, 1992, to perfect his appeal. 7. A substantive appeal regarding the veteran's claim, dated September 7, 1992, was received by the regional office on September 10, 1992. The envelope in which the document was mailed containing the post marked date is not of record. CONCLUSION OF LAW The veteran's substantive appeal following issuance of the statement of the case regarding the question of an increased evaluation for his intestinal disorder and a total rating based on individual unemployability was timely received. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 20.302, 20.305 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record reflects that in March 1991 the veteran submitted an application for an increased evaluation for his intestinal disorder and to a total rating based on individual unemployability due to service-connected disability. In a June 1991 rating action, entitlement to the above benefits was denied by the regional office. The veteran was notified of the decision on June 19, 1991. In September 1991, the veteran submitted a notice of disagreement with the June 1991 rating action. On September 26, 1991, he was sent a statement of the case regarding the matter. In November 1991, the veteran asked for a 60-day extension to complete his substantive appeal. In a January 1992 letter, the regional office advised the veteran that it had granted him a 60-day extension on his appeal. He was informed that if the regional office did not hear from him within 60 days from the date of the letter, it would assume he did not intend to perfect his appeal and the records would be closed. He was further advised that in any event, he had until September 9, 1992, to perfect his appeal. The record further discloses that, on September 10, 1992, the veteran submitted a substantive appeal (VA Form 1-9), dated September 7, 1992, to the regional office together with supporting documents. The envelope in which the substantive appeal and documents was submitted is not of record. 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 statement of the case to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the decision being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). When the Board of Veterans' Appeals rules of practice require that any written document be filed within a specified period of time, a response post marked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the post mark is not of record, the post marked date will be presumed to be five days prior to the date of receipt of the document by the VA. In calculating the five-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In this particular case, as indicated previously, the veteran's substantive appeal was dated stamped as received by the regional office on September 10, 1992. That was more than one year from the date of mailing of the notification of the June 1991 rating action; however, the regional office had advised the veteran that he had until September 9, 1992, to perfect his appeal. The envelope containing the veteran's substantive appeal and supporting documents is not contained in the claims file. Accordingly, the post marked date is considered to have been five days prior to the date of receipt of the documents by the VA. Thus, in this case, the veteran's substantive appeal is presumed to have been received by the VA several days prior to the September 9, 1992, deadline authorized by the regional office for submission of the appeal. Accordingly, the veteran's substantive appeal is considered to have been timely submitted and favorable action on that question is therefore in order. 38 C.F.R. §§ 20.302, 20.305. In arriving at its decision in this case, the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. ORDER The appeal with respect to whether the veteran's substantive appeal was timely filed is granted. WAYNE M. BRAEUER 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.