PREC 9-97    Perfecting an Appeal after issuance of a Supplemental Statement of the Case - 39 U.S.C. § 7105(d); 38 C.F.R. § 20.301(c)     Citation: Vet. Aff. Op. Gen Couns. Prec. 9-97, VAOPGCPREC 9-97, 1997

QUESTIONS PRESENTED:

1.  Can the issuance of a supplemental statement of the case in response to evidence received within the one-year period following the mailing date of notification of the determi-nation being appealed extend the time allowed to perfect an appeal beyond the expiration of that one-year period?

2.  If a supplemental statement of the case is not or cannot be issued before the one-year period expires, does the appeal expire and must such evidence be considered an attempt to reopen a finally adjudicated claim?

HELD:

1.  If a claimant has not yet perfected an appeal and VA issues a supplemental statement of the case in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the supplemental statement of the case to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period.  To the extent that 38 C.F.R. § 20.304 purports to provide otherwise, it is invalid and requires amendment.

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2.  If VA receives additional material evidence within the time permitted to perfect an appeal, 38 U.S.C. § 7105(d)(3) requires VA to issue a supplemental statement of the case even if the one-year period following the mailing date of notification of the determination being appealed will expire before VA can issue the supplemental statement of the case.  Furthermore, 38 C.F.R. § 3.156(b) requires that such evidence be considered in connection with the pending claim.