Citation Nr: 0006661	
Decision Date: 03/13/00    Archive Date: 03/17/00

DOCKET NO.  97-24 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Whether the veteran submitted a timely appeal.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The veteran served on active duty from April 1967 to May 
1970.

By letter dated August 1996, the Regional Office (RO) advised 
the veteran that his substantive appeal had not been received 
in a timely manner and that, therefore, his the time period 
he had in which to appeal had expired.  The veteran appealed 
this determination to the Board of Veterans' Appeals (Board).  


FINDINGS OF FACT

1. A statement of the case was issued to the veteran at his 
address of record on May 17, 1996.  He was given 60 days 
to perfect his appeal.

2. In a letter received in June 1996, the veteran reported 
that he was incarcerated and inquired as to the status of 
his claim

3. The veteran was sent another statement of the case on July 
1, 1996, and he was given another sixty days to perfect 
his appeal.

4. The veteran's substantive appeal was received on August 7, 
1996.


CONCLUSION OF LAW

The veteran's substantive appeal was timely.  38 U.S.C.A. 
§ 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.303 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual background

By rating decision dated May 1995, the RO denied the 
veteran's claims for service connection and for nonservice-
connected pension benefits.  

The veteran submitted a notice of disagreement with this 
determination in June 1995.  The address listed on this 
letter was in Los Angeles, California.

The RO furnished a statement of the case to the veteran on 
May 17, 1996.  It was sent to the veteran's address in Los 
Angeles, California.

In a letter veteran received on June 18, 1996, the veteran 
asked his representative for the status of his claim.  He 
indicated that he was incarcerated.  He provided a return 
address in Tennessee.

By letter dated July 1, 1996, the RO acknowledged that it had 
received the veteran's June 1996 letter.  It was noted that 
it had sent a statement of the case in May 1996 to the 
address in Los Angeles, but that the veteran had not returned 
a Department of Veterans Affairs (VA) Form 9.  He was advised 
that in order to continue his appeal, he had to return the 
substantive appeal within 60 days of the date of the letter 
of May 17, 1996 or within the remainder, if any, of the one-
year period from the date of the letter notifying you of the 
action that he had appealed.  The letter added that the 
veteran had until July 16, 1996 to submit the VA Form 9.  
However, since it seemed that he had never received the 
statement of the case because his address had changed, the RO 
would re-send the statement of the case and he was given 
sixty days from the date of this letter (August 29, 1996) to 
formalize his appeal.  This statement of the case was sent to 
the address in Tennessee.

The veteran's substantive appeal was received on August 7, 
1996.

Analysis

An appeal consists of a timely filed notice of disagreement 
in writing and, after a statement of the case has been 
furnished, a timely filed substantive appeal.  38 U.S.C.A. 
§ 7105; 38 C.F.R. § 20.200.

A Substantive Appeal consists of a properly completed VA Form 
9, "Appeal to Board of Veterans' Appeals," or 
correspondence containing the necessary information.  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 Statement of the Case and 
any prior Supplemental Statements of the Case.  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 a Statement of 
the Case or a Supplemental Statement of the Case which is not 
specifically contested.  38 C.F.R. § 20.202.

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 when such a response is required, 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 Supplemental Statement of the Case.  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.

The underlying facts in this case are not in dispute.  The 
veteran had initiated the process of appealing a 
determination of the RO by submitting a notice of 
disagreement.  Although a statement of the case was issued to 
his address of record, the veteran indicated in his June 1996 
letter that he was in jail at that time, and implied that he 
had not received the statement of the case.  Accordingly, the 
RO re-issued the statement of the case and gave the veteran 
an additional 60 days in which to submit his substantive 
appeal.  That he did so is not contested.  The RO, however, 
without any factual basis in the record, assumed that the 
veteran's changes of address were not valid, and concluded 
that he should not have been granted an extension of the time 
limit he had in which to perfect his appeal.  The fact 
remains, however, that the July 1, 1996 letter from the RO 
specifically afforded the veteran an additional 60 days to 
submit his substantive appeal.  He clearly complied, and 
there is no basis on which the RO could retroactively 
withdraw the extension of time it granted the veteran in the 
July 1, 1996 letter.  In effect, the RO implicitly determined 
when it granted the extension of time that the veteran had 
changed his address of record.  The Board concludes, 
therefore, that the veteran's substantive appeal was received 
in a timely manner, and his appeal of the May 1995 rating 
action must be held to be timely.  


ORDER

To the extent that the veteran's substantive appeal was 
timely received, the appeal is granted.



		
	Deborah W. Singleton 
	Member, Board of Veterans' Appeals