PREC 9-99 Authority of Board of Veterans' Appeals to Adjudicate Question of Timeliness of Substantive Appeal When Issue Not Previously Adjudicated by Agency of Original Jurisdiction Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-99, VAOPGCPREC 9-99, 1999 QUESTIONS PRESENTED: a. Does the Board of Veterans’ Appeals (BVA) have the authority to adjudicate or address in the first instance the question of timeliness of a substantive appeal? If not, what is the appropriate course of action for the BVA to take when it raises the issue of timeliness of the substantive appeal for the first time on appeal? b. What is the appropriate course of action for the BVA to take when it discovers for the first time on appeal that no substantive appeal has been filed on an issue certified to the BVA for appellate review by the agency of original jurisdiction (AOJ)? HELD: a. The BVA has the authority to adjudicate or address in the first instance the question of timeliness of a substantive appeal and may dismiss an appeal in the absence of a timely-filed substantive appeal. It should, however, afford the claimant appropriate procedural protections to as sure adequate notice and opportunity to be heard on the question of timeliness. b. When the BVA discovers in the first instance that no substantive appeal has been filed in a case certified to the BVA for appellate review by the agency of original jurisdiction, it may dismiss the appeal. Again, it should afford the claimant appropriate procedural protections. |
