CCK recently won a reversal of the Board’s decision in the case of an Air Force veteran who served in the 1950s and 1960s. This Veteran had a 100-percent rating for psychophysiological musculoskeletal reaction from 1989, but VA reduced his rating to 50-percent in 2007.
The Veteran sent a letter to the RO in which he indicated his wish to appeal the reduction in his disability rating, requested information in accordance with the Freedom of Information Act (“FOIA”) and requested an extension of time in which to perfect his appeal “until 45 days after the FOIA items have been mailed.” The RO responded with a letter indicating it was looking for items responsive to his FOIA request, but did not indicate whether the requested extension was granted. When the veteran subsequently filed a substantive appeal, both the RO and the Board found his appeal not to be timely. The Court agreed with the veteran’s attorneys that because his request for an extension and FOIA documents indicated he needed to receive the FOIA documents in order to perfect his appeal, the Board had erred in finding that the Veteran had not filed a timely appeal. The Court reversed the Board’s determination on the subject and remanded the case for the Board to determine whether the reduction in his disability rating was proper.