BVA9506346 
DOCKET NO.  93-13 325     )       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 within one year of
date of notification of the decision being appealed.

ATTORNEY FOR THE BOARD

G. Wm. Thompson, Counsel

INTRODUCTION

The veteran had active duty for training from July 13, 1976, to
January 11, 1977, from January 23,1977, to February 6, 1977, and
active military service from June 1977 to September 1980.

This appeal arises from March 1993 Department of Veterans Affairs
(VA) St. Petersburg, Florida, Regional Office (RO) notification
to the veteran of the finality of his 1982 appeal.

In the course of this appeal the veteran has raised the issue of
entitlement to service connection for residuals of a head injury.
This issue is not intertwined with the issue on appeal, has not
been developed for appeal and will not be considered by the Board
of Veterans' Appeals (Board) at this time.  The RO's attention is
directed to the claim for action deemed appropriate.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that the RO erred in finding
that he did not timely submit a substantive appeal.  He asserts
that his claim was denied without benefit of his active duty
medical records, that no effort was made to secure additional
pertinent medical records, and that he never received the January
14, 1982, letter denying his claim, because he was in the Tulsa,
Oklahoma, county jail at the time.

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 preponderance of the evidence shows that a
substantive appeal was not timely filed to the February 1981
claim for disability benefits.

FINDINGS OF FACT

1.  The veteran's claim for VA disability benefits was received
in February 1981; his claim for benefits was denied by rating
actions in November 1981, and January 1982.

2.  He was notified of the denials and his appellate rights, by
letters dated November 23, 1981, and January 14, 1982, which were
sent to his address of record, 1121 Carrington Avenue, Seat
Pleasant, Md. 20027.

3.  The veteran filed a notice of disagreement in May 1982,
showing an address of 515 S. Denver, Box 164, Tulsa, Oklahoma
74103, and a Statement of the Case was issued and sent to that
address in June 1982, along with information outlining the
requirements for a substantive appeal.

4.  A substantive appeal was not filed within one year of the
date of the issuance of the notice of disagreement or within 60
days of the issuance of the statement of the case, and a request
for extension of the time period was not received by the RO.

5.  It is not shown that incarceration prevented the veteran from
filing a timely substantive appeal.

CONCLUSION OF LAW

A substantive appeal was not timely filed within one year of date
of notification of the decision being appealed.  38 U.S.C.A.
§ 5107(a) (West 1991); 38 C.F.R. §§ 19.110, 19.112, 19.115,
19.116, 19.118, 19.119 (1981).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Regulations in effect at the time of last notification of the
rating decision, and statement of the case in question are given
below.

While it is contemplated that the agency of original jurisdiction
will give proper notice of the right to appeal and the time
limit, failure to notify the claimant of his right to such
appellate review or of the time limit applicable to a notice of
disagreement or substantive appeal will not extend the applicable
period for taking this action.  38 C.F.R. § 19.110 (1981).

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 C.F.R. § 19.112 (1981).

With the statement of the case, the appellant and his
representative will be furnished information on the right and
time limit to file a substantive appeal, and VA Form 1-9 Appeal
to the Board of Veterans Appeals.  38 C.F.R. § 19.115(c)(2)
(1981).

VA Form 1-9, Appeal to the Board of Veterans Appeals, adequately
executed, or its equivalent in correspondence, from a claimant or
his representative following the furnishing of a statement of the
case will constitute a substantive appeal.  38 C.F.R. § 19.116
(1981)

A substantive appeal shall be filed within 60 days from the date
of mailing of the statement of the case, or within the remainder
of the 1-year period from the date of mailing of notification of
the review or determination being appealed, whichever is greater
(38 U.S.C. § 4005A(b)).  38 C.F.R. § 19.118(b) (1981).

An extension of the 60-day period to file a substantive appeal
may be granted for good cause shown.  38 C.F.R. § 19.118(c)
(1981).

The Board of Veterans Appeals will make a final determination of
appellate jurisdiction when a claimant or his representative
protests an adverse determination made by the agency of original
jurisdiction thereon.  38 C.F.R. § 19.119 (1981).

History

The veteran filed a claim for disability benefits in February
1981.  He was examined by the VA in October 1981, and his claim
was denied by rating action in November 1981, without benefit of
his service medical records.  He was notified of the
determination and his appellate rights, in writing, in November
1981.  Available service medical records were received in
December 1981, and there was a rating action in January 1982 that
confirmed the prior denial.  The veteran was notified of this
denial, in writing, January 14, 1982.  He filed a notice of
disagreement in May 1982, and a statement of the case, with
accompanying instructions for filing a substantive appeal, was
issued in June 1982.

The statement of the case was sent to 515 S. Denver, Box 164,
Tulsa, Oklahoma, 74103.  This was the address used by the veteran
when he filed his notice of disagreement.  There is nothing in
the evidence of record to show that the statement of the case was
returned to the VA or was undeliverable.

There were requests for information from VA facilities, in Tulsa,
Oklahoma in August 1984, and Columbus, Ohio in March 1985, in
regard to treatment for the veteran.  Received from the veteran
in May 1985, was a statement referenced to his "prior SC
disability claim," indicating that he wished to "reclaim those
conditions."  He was notified in writing, in June 1985, that if
he wished to reopen his claim he must furnish new and material
evidence.

Summary

While contending that he did not receive the January 14, 1982
letter of denial of his claim, the veteran also contends that his
incarceration at that time denied him an opportunity to pursue
his appeal rights.  We find no merit to his contentions.  Notice
was properly sent to the veteran, as evidenced by his notice of
disagreement in May 1982.  Whether he received the January 14th
letter or not, he did file a timely notice of disagreement in May
1982.  As stated above, the statement of the case was sent to the
address provided by the veteran, and was not returned to the VA.
Moreover, the regulations in effect in 1982 prohibited extension
of the time period even if there was failure to notify the
claimant.  During attempts to reopen the veteran's claim in 1985
there was no written inquiry as to the disposition of the 1982
claim; rather, reference was made to his "prior" claim for
disability benefits, and wish to "reclaim those conditions",
which was consistent with receipt of notice of the prior denial
and statement of the case.

The veteran has not provided any details as to why incarceration
prevented him from pursuing his appeal.  Incarceration alone
would not preclude filing a substantive appeal, and no evidence
has been submitted or identified that would show why or how it
did in the veteran's case.  He did not file a request for an
extension of the time period to file a substantive appeal.

Accordingly, it is concluded that a substantive appeal was not
timely filed from the within the 1-year period from the date of
mailing of notification of the determination being appealed.  38
C.F.R. §§ 19.110, 19.112, 19.115, 19.116, 19.118, 19.119.

In regard to the veteran's contentions concerning the evidence
used at the time of the denial in 1982, the availability of
evidence, and the RO's duty to assist, the Board points out that
such arguments pertain to reopening his claim for disability
benefits, and are not pertinent to this appeal.

ORDER

A substantive appeal was not timely filed within one year of date
of last notification of the decision being appealed, and the
appeal is denied.

RENÉE M. PELLETIER
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.