Citation Nr: 0006943 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-48 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the veteran filed a timely substantive appeal with regard to a September 1995 decision concerning the effective date for a grant of service connection for loss of visual fields. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from February 1986 to September 1987. This case came before the Board of Veterans' Appeals (Board) on appeal from a determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in September 1998 which concluded that the veteran had not submitted a timely appeal to a September 1995 rating decision. On December 2, 1999, a video conference hearing was held before C.W. Symanski, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. A September 1995 rating decision granted service connection for loss of visual fields, with an effective date in May 1991; notice of that decision was mailed on September 26, 1995. 2. In June 1996 the RO received correspondence from the veteran which was construed as expressing disagreement with the effective date for loss of visual fields contained in the September 1995 rating decision. 3. On July 8, 1996, a Statement of the Case pertaining to the above issue was mailed to the veteran. 4. A Form 9 submitted on behalf of the veteran was dated and received in November 1996. CONCLUSION OF LAW The veteran did not file a timely Substantive Appeal with regard to the September 1995 rating decision. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. §§ 20.202, 20.302, 20.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran filed a claim for field of vision loss due to an in-service accident in October 1994. In a rating decision in September 1995, the RO granted service connection for loss of visual field, with an effective date of May 1991. The veteran was notified of this decision in a letter dated September 26, 1995. Letters from the veteran concerning the effective date for his visual loss were received by the RO in October 1995 and March 1996. A letter from the veteran was accepted by the RO as a Notice of Disagreement in June 1996. The RO issued a Statement of the Case concerning the effective date for service connection for loss of visual fields in July 1996. A letter accompanying the Statement of the Case was dated July 8, 1996. A letter dated by the veteran's representative in August 1996 stated that the veteran was submitting evidence in support of his claim for an earlier effective date. The letter was not date stamped, and was accompanied by an August 1996 VA medical report pertaining to the onset of the veteran's loss of vision. A Form 9, dated November 14, 1996,and accompanying attachment was received by the RO on November 22, 1996. In a letter dated in September 1998, the RO informed the veteran that his substantive appeal was not received within one year of the decision granting service connection for loss of visual field, with an effective date of May 1991, and that his substantive appeal was therefore not timely. The veteran appealed. During the course of a hearing conducted in December 1999, testimony was advanced to the effect that the appellant had submitted an appeal prior to September 1996, but had apparently been sitting around the RO. Analysis The law provides that: (a) Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. ... (b)(1) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the activity which entered the determination with which disagreement is expressed (hereafter referred to as the "agency of original jurisdiction"). A notice of disagreement postmarked before the expiration of the one-year period will be accepted as timely filed. ... (3) Copies of the "statement of the case" prescribed in paragraph (1) of this subsection will be submitted to the claimant and to the claimant's representative, if there is one. The claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal. This may be extended for a reasonable period on request for good cause shown. ... The agency of original jurisdiction may close the case for failure to respond after receipt of the statement of the case, but questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals. 38 U.S.C.A. § 7105. In addition, proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal consists of a properly completed Form 9, or correspondence containing the necessary information. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.202. 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. 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. 38 C.F.R. § 20.202. The regulations further state that 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 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302. The filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. 38 C.F.R. § 20.304. The record clearly shows that notice of the decision granting service connection for field of vision loss, with an effective date in May 1991, was mailed on September 26, 1995. Therefore, the veteran was required to file a written substantive appeal with VA either within one year after notification of the rating decision at issue or within 60 days after July 8, 1996, the date of mailing of the Statement of the Case, whichever date was later. Based on these facts, the one year limit after notification of the rating decision is applicable, as being the later of the two periods described above. Accordingly, the veteran's substantive appeal had to have been received by September 26, 1996, one year from notice of the rating decision at issue, in order to have been received in a timely manner. A Form 9 was received from the veteran's representative in November 1996. The November 1996 Form 9 was received after the September 26, 1996 time limit to file a substantive appeal, and therefore cannot be considered timely. This form was not only received at the RO in November 1996, but it was also dated the same month. Thus, there would be no reason to believe that the form had actually been received any earlier than November 1996. The Board notes that a letter dated by the veteran's representative in August 1996, along with an accompanying medical report submitted in support of the veteran's claim for an earlier effective date, may have been received prior to the September 26, 1996 deadline for filing a substantive appeal. The Board further notes that the letter was not date stamped. However, even if the letter and accompanying evidence had been received prior to the deadline, it would not qualify as a substantive appeal. The letter merely stated that the veteran was submitting additional evidence to support an earlier effective date. The letter did not include any specific arguments relating to errors of fact or law made by the RO in determining the effective date, and therefore constituted no more than a cover letter for the additional evidence submitted at that time. While the evidence submitted by the veteran may have been received by the RO in August 1996, the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. 38 C.F.R. § 20.304. In the absence of a timely Form 9, or its equivalent, the Board must find that the veteran failed to perfect his appeal regarding an earlier effective date and the Board therefore does not have jurisdiction over the question of entitlement to an earlier effective date. ORDER The veteran did not perfect an appeal of the RO's September 1995 rating decision. C. W. Symanski Member, Board of Veterans' Appeals