BVA9503624 
DOCKET NO.  93-04 674     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

THE ISSUE

Whether a substantive appeal was timely filed from a denial of
service connection for an acquired psychiatric disorder, to
include post-traumatic stress disorder (PTSD), for the purpose of
accrued benefits.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran had active service from June 1943 until December
1945.

This matter comes before the Board of Veterans' Appeals (the
Board) from a January 1992 rating decision of the New York, New
York, Regional Office (RO) of the Department of Veterans Affairs
(VA).

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that a timely substantive appeal was filed from
an RO denial of service connection for PTSD in January 1989
because the appellant's request for an extension of time to
perfect the appeal was granted, but that she was unaware that
there was a time limit as to the extension.

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 appellant'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's substantive appeal was timely filed
and the appeal of the denial of service connection for PTSD, for
the purpose of accrued benefits, is reinstated.

FINDINGS OF FACT

1.  The veteran had active service from June 1943 until December
1945.

2.  The veteran filed claims for service connection for an
acquired psychiatric disorder, to include PTSD on May 20, 1988,
and January 17, 1989.

3.  Following evidentiary development, a rating decision of
November 3, 1989, in pertinent part, granted service connection
for residuals of a gunshot wound of the right hand but denied
service connection for an acquired psychiatric disorder, to
include PTSD.

4.  The RO informed the veteran of the denial of service
connection for an acquired psychiatric disorder, to include PTSD,
by letter of November 20, 1989.

5.  The veteran's notice of disagreement (NOD) as to the denial
of service connection for an acquired psychiatric disorder, to
include PTSD, was received on December 7, 1989.

6.  A death certificate reveals that the veteran died on
January 12, 1990.

7.  A statement of the case addressing the issue of entitlement
to service connection for an acquired psychiatric disorder,
claimed as PTSD, was issued to the veteran on January 30, 1990.

8.  The veteran's wife filed VA Form 21-4138, Statement in
Support of Claim, on March 28, 1990, stating that she required
"additional time in regards to appeal of statement of the case"
which constituted a request for an extension of time within which
to perfect her appeal.

9.  The RO did not respond to the appellant's request for an
extension of time to perfect the appeal.

10.  The appellant filed VA Form 21-4138, Statement in Support of
Claim, on August 6, 1991, which was accepted by the RO as an
untimely filed substantive appeal.

CONCLUSION OF LAW

By failing to respond to the timely request for an extension
within which to file a substantive appeal, the RO implicitly
waived the timely filing requirement of a substantive appeal and,
thus, the subsequent substantive appeal was timely received.
38 U.S.C.A. §§ 5107, 7105(d)(3) (West 1991); 38 C.F.R. §§ 20.303,
20.304 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant's claim is plausible and thus "well grounded"
within the meaning of 38 U.S.C.A. § 5107(a) which mandates a duty
to assist the veteran in developing all pertinent evidence.
However, in this case, the sole issue before the Board is one of
a procedural question based on undisputed facts without the
necessity of balancing of the evidence.  Accordingly, the
evidentiary record is sufficient in scope and in depth for a
fair, impartial, and fully informed appellate decision.

Appellate review of an RO decision is initiated by filing an NOD
and completed by filing a substantive appeal, after the issuance
of a statement of the case (SOC).  38 U.S.C.A. § 7105(a) and
38 C.F.R. § 20.200 (1993).  On receipt of the NOD, the RO takes
such action or development as is appropriate and if the claim is
still denied, an SOC is issued.  38 U.S.C.A. § 7105(d)(1).  A
substantive appeal must then be filed within 60 days of the
mailing of the SOC, 38 U.S.C.A. § 7105(d)(3), or within the
remainder of the one-year period from the date of notification of
the decision, whichever period ends later.  38 C.F.R.
§ 20.302(b).

The formal appeal consists of either VA Form 1-9 or
correspondence containing the necessary information.  38 C.F.R.
§ 20.202.  There is no question that the appellant's VA
Form 21-4138 received in August 1991 contained such necessary
information and was thus a substantive appeal.  Roy v. Brown,
5 Vet.App. 554, 555 (1993).

The United States Court of Veterans Appeals (the Court) held in
Rowell v. Principi, 4 Vet.App. 9, 17 (1993) that in "contrast to
the requirements for timely filing an NOD, the 'request' and
'good cause' requirements are statutory as to the 1-9 Appeal
(38 U.S.C. § 7105(d)(3)) rather than regulatory (38 C.F.R.
§ 19.124 (replaced by § 20.302(b)).  And statutory section
7105(d)(3) provides explicitly that a claimant may appeal to the
BVA any determination by the RO to close the claim for failure to
respond to the SOC."

Also in Rowell, supra, at 17, the Court noted that the "biggest
difference between the filing requirements for the NOD and the
1-9 Appeal, however, is that failure to file a timely 1-9 Appeal
does not automatically foreclose an appeal, render a claim final,
or deprive the BVA of jurisdiction."  Rather, the "RO may close
an appeal for failure to respond to the SOC.  However, the
statute and regulations do not require an RO to close a claim in
that situation; nor do they provide that the claim will become
final if the claimant fails to file a timely 1-9 Appeal."
Indeed, the Court held in Rowell, supra, that the RO had the
authority to accept a 1-9 as timely or to have informed the
veteran that it would close his claim if not timely filed.  In
that case, because there was no indication that the RO closed the
appeal for failure to file a timely 1-9 appeal, it constituted a
timely filed appeal.  Further, in Roy v. Brown, 5 Vet.App. 554,
556, the Court noted that "'[i]n Rowell,...the appellant
submitted numerous requests for extensions of time within the
applicable time period.  Although he ultimately filed his appeal
after the prescribed due date, the Board, we held, implicitly
waived the timely filing requirement."

Also in Roy, supra, at 556, the Court noted that in that case,
the appellant had not filed a request for an extension within the
applicable time period as required by 38 C.F.R. § 20.303 and that
in Rowell, supra, the Court had not addressed the provisions of
[38 C.F.R.] section 20.303 requiring that a request for extension
be made prior to the expiration of the applicable time limit [of
one year].

In the instant case, it is clear that the appellant's request for
an extension of time to perfect the appeal was received on
March 28, 1990, within 60 days of the issuance of the SOC on
January 30, 1990.

However, the RO failed to address this matter.  The receipt of
voluminous additional evidence submitted by the appellant does
not, under 38 C.F.R. § 20.304, extend the time for completing an
appeal by filing a substantive appeal.  On the other hand,
38 C.F.R. § 20.303 states, in pertinent part, that a "request for
such an extension [of a timely filed substantive appeal] must be
in writing and must be made prior to expiration of the time limit
for filing the substantive appeal" which fits the circumstances
of this case.  Moreover, that regulation also provides that a
"denial of a request for extension may be appealed to the Board"
in accordance with the statute, 38 U.S.C.A. § 7105(d)(3), which
provides that "questions as to timeliness or adequacy of response
shall be determined by the Board of Veterans' Appeals."

Because questions of the timeliness and adequacy of a substantive
appeal, or denials of extensions of time within which to file an
appeal, which may be granted on a showing of good cause, are
appealable to the Board, it is clear from the Court's holding in
Rowell that a failure to respond to a request for additional time
within which to file a substantive appeal constitutes an implicit
waiver of the timely filing requirement.  This is contrasted with
the Court's holding in Roy, supra, where there was no request
received within the applicable time period for an extension of
time to file a substantive appeal.

In sum, the failure of the RO to respond to the timely filed
request for an extension to file a substantive appeal implicitly
waived the timely filing requirement of a substantive appeal and
therefore, the subsequent VA Form 21-4138, Statement in Support
of Claim, received on August 6, 1991, constituted a timely filed
substantive appeal and, thus, perfected the appeal of the denial
of service connection for an acquired psychiatric disorder, to
include PTSD, for the purpose of accrued benefits.

This decision is limited only to a determination that the appeal
of the denial of service connection for an acquired psychiatric
disorder, to include PTSD, was timely perfected and does not in
any way address the merits of that claim.  Because the appeal was
perfected, the appellant need not take any further action, but
the RO must readjudicate the issue de novo.

In reaching this determination, the Board has considered the
doctrine of resolving all doubt in favor of the veteran under
38 U.S.C. § 5107(b), but the determination of the Board in this
case is one of a matter of law and does not require any balancing
of the evidence.

ORDER

A timely appeal was perfected from the denial of service
connection for an acquired psychiatric disorder, to include PTSD,
for accrued benefits.

          HOLLY E. MOEHLMANN
          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.