Roy v. Brown , 1993 U.S. Vet. App. LEXIS 506 ( 1993 )

NEBEKER, Chief Judge:

Appellant, Carlton A. Roy, appeals a March 24, 1992, Board of Veterans’ Appeals (BVA or Board) decision which dismissed his appeal as untimely. The Secretary filed a motion for summary affir-mance. Upon review of the pleadings and the record on appeal, we hold that appellant did not file a timely appeal to the Board, nor did he file a timely request for an extension; accordingly, we affirm .the Board’s decision.

Appellant reopened his claim for service connection for a psychiatric disability in March of 1989. R. at 12. The Regional Office (RO) granted his request and awarded him a total disability rating on August 1, 1989, with an effective date of March 1988. R. at 16-17. Although appellant filed a Notice of Disagreement (NOD) objecting to the assigned effective date (R. at 18) and was issued a statement of the case (R. at 20-23), he did not file a substantive appeal until September 1990 (R. at 24). The Board found that appellant had not appealed the RO decision within the appropriate time limit and accordingly dismissed the appeal.

Appellant argues that his appeal to the Board should be deemed timely filed because the NOD, which was filed on time, comprises the requisite notice of intent to appeal. The Secretary counters that the “formality” of perfecting an appeal to the BVA is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both an NOD and a formal appeal. The Secretary is correct. Appellate review of an RO decision is initiated by an NOD and “completed by a substantive appeal after a statement of the case [SOC] is furnished....” 38 U.S.C.A. § 7105(a) (West 1991) (emphasis added); 38 C.F.R. § 20.200 (1992). The purpose of the NOD is to inform the RO of appellant’s disagreement with the decision. Upon receipt of the NOD, the RO will take “such development or review action as it deems proper.... If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare [an SOC].” 38 U.S.C.A. § 7105(d)(1) (West 1991).

After an appellant receives the SOC, he must file ■ a formal appeal within “sixty days from the date the [SOC] is mailed,” 38 U.S.C.A. § 7105(d)(3) (West 1991), or within the remainder of the one-year period from the date the notification of the RO decision was mailed, whichever period ends later. 38 C.F.R. § 20.302(b) (1992); see Rowell v. Principi, 4 Vet.App. 9, 17 (1993); Cuevas v. Principi, 3 Vet.App. 542, 546 (1992) (where claimant did not perfect appeal by timely filing substantive appeal, RO rating decision became final). By regulation, this formal appeal must consist of either a Department of Veterans Affairs (VA) Form 1-9, or correspondence containing the necessary information. 38 C.F.R. § 20.202 (West 1992). The formal appeal permits the appellant to consider the reasons for an adverse RO determination, as explained in the SOC, and to formulate and present “specific arguments relating to errors of fact or law” made by the RO. Id.; see 38 U.S.C.A. § 7105(d)(3).

Here, appellant admittedly did not file a timely formal appeal. Accordingly, he is statutorily barred from appealing the RO decision. This time barrier may be extended for good cause, however, under 38 U.S.C.A. § 7105(d)(3):

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.

38 U.S.C.A. § 7105(d)(3); see 38 C.F.R. § 20.303 (1992). Appellant argues, therefore, that although the formal appeal was filed after the deadline, he had good cause for doing so: (1) Walter Johnson, a team leader at the Veteran’s Center in Kona, Hawaii, who was handling the veteran’s appeal, abruptly left the Veteran’s Center; and (2) appellant’s lack of knowledge of the appellate process, coupled with his psychiatric condition, prevented him from complying with the congressionally mandated timely filing requirements and perfecting his appeal.

The accompanying regulation, applicable at the time of appellant’s efforts to appeal, provided, however, that

An extension of the 60-day period for filing a substantive appeal or the 30-day period for responding to a supplemental statement of the case may be granted for good cause shown. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive appeal.

38 C.F.R. § 19.130 (1990) (emphasis added) (recodified at 38 C.F.R. § 20.303). Here, appellant did not file a request for an extension of time within the applicable time period. Since the regulation requires that a request be in written form and received prior to the expiration of time for the filing of a substantive appeal, the Board did not err in finding that a substantive appeal of the issue of entitlement to an earlier effective date for service connection for post-traumatic stress disorder was not timely filed.

Our dissenting colleague offers two contrary arguments. First, given the Court’s decision in Rowell, supra, the case should be remanded for the Board to consider whether to exercise its discretion not to dismiss the appeal based on the belated 1-9 form. In Rowell, however, 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. Such an implicit conclusion attributed to the RO and the Board is hardly the stuff from which we can draw a conclusion that the RO or the Board generally, and in all cases, has discretion to waive the express provisions of section 20.-303 (supra). Indeed, there would be no principle basis or criteria for the exercise of such discretion and for this Court to review such an exercise. Since the Secretary has limited the power to grant an extension by the provisions of section 20.-303 for this explicit 60-day period, any argument that the Rowell language be ranked among precedents described in Bethea v. Derwinski, 2 Vet.App. 252 (1992), infra, places much too much reliance on the lack of an assertion by the Secretary that there was a jurisdictional defect in the proceedings. Here, appellant did not file a request for extension within the applicable time period required by section 20.303. Secondly, the Rowell decision did not address the provisions of section 20.303, requiring that a request for extension be made prior to the expiration of the applicable time limit.

The dissent next argues that 38 C.F.R. § 3.109(b), infra, conflicts with 38 C.F.R. § 20.303, and implies that the former regulation should control. We respectfully disagree. Section 3.109(b) applies broadly to the “perfecting” of claims or “challenges” to adverse VA decisions; it does not address “perfecting” of appeals. Section 20.-303, conversely, applies specifically to the filing of a 1-9 appeal. These two regulations do not conflict; rather, one is general and the other, specific. A familiar tool of statutory construction is the “principle that a more specific statute will be given precedence over a more general one....” Busic v. United States, 446 U.S. 398, 404, 100 S.Ct. 1747, 1751, 64 L.Ed.2d 381 (1980); Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). A contrary view as to a regulatory scheme promulgated under statutory authority would make no sense. Section 20.303, accordingly, takes precedence, and the Board did not err in applying it.

As to appellant’s request that we address whether the effective date is a product of “clear and unmistakable error,” that issue was not adjudicated by the Board and is, therefore, not before us. See Russell v. Principi, 3 Vet.App. 310, 315 (1992).

Accordingly, the Board decision is AFFIRMED.