Citation Nr: 0020292 Decision Date: 08/02/00 Archive Date: 08/09/00 DOCKET NO. 95-30 388 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES Timeliness of filing of an appeal concerning an August 1991 RO rating decision, denying service connection for residuals of a head injury. Service connection for residuals of a head injury, including a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from March 1972 to November 1973. This appeal comes to the Board of Veterans' Appeals (Board) from an August 1991 RO rating decision that denied service connection for residuals of a head injury. In July 1998, the Board remanded the case to the RO for issuance of a supplemental statement of the case on the issue of whether the veteran had submitted a timely substantive appeal with the August 1991 RO rating decision, denying service connection for residuals of a head injury. FINDINGS OF FACT 1. The veteran's claim for service connection for residuals of a head injury was denied in an August 1991 RO rating decision; the veteran was notified of this determination in August 1991; he submitted a notice of disagreement on this issue in March 1992; and a supplemental statement of the case was sent to him in May 1992 concerning this matter. 2. A substantive appeal or other correspondence evincing a desire to appeal the determination in the August 1991 RO rating decision, denying service connection for residuals of a head injury, was not received within one year of the August 1991 letter notifying of this determination or within 60 days of the May 1992 supplemental statement of the case sent to him on this matter. CONCLUSION OF LAW The veteran did not submit a timely substantive appeal with the determination in the August 1991 RO rating decision, denying service connection for residuals of a head injury, and the Board does not have jurisdiction over the denial of service connection of residuals of a head injury in the August 1991 decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The central issue before the Board at this time is whether the veteran filed a timely substantive appeal with the August 1991 RO rating decision, denying service connection for residuals of a head injury. Under the governing legal criteria, 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 20.200, 20.202, and 20.302(b), a substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. The VA Form 9 or other correspondence must indicate the issue being appealed and set out specific arguments relating to errors of fact or law made by VA. The substantive appeal or other correspondence must be filed within 60 days of issuance of a statement of the case to the veteran by the RO or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. In this case, the August 1991 RO rating decision denied the veteran's claim for service connection for residuals of a head injury. The veteran was notified of this determination in August 1991 and he submitted a notice of disagreement in March 1992. The RO sent him and his representative a supplemental statement of the case on this matter in May 1992. A review of the record does not show receipt of a VA Form 9 or other correspondence from the veteran evincing a desire to appeal this matter within 60 days of issuance of the May 1992 supplemental statement of the case or within one year from the date of the August 1991 letter notifying him of this decision. At a hearing before the undersigned in May 2000, the veteran testified to the effect that he intended to appeal the denial of service connection for residuals of a head injury in the August 1991 RO rating decision when he submitted a VA Form 9 that was received by VA in April 1992. This form was received prior to the issuance of the supplemental statement of the case in May 1992 on the issue of service connection for residuals of a head injury and does not mention the issue of service connection for residuals of a head injury. Hence, this form does not constitute a substantive appeal on the denial of service connection for residuals of a head injury in the August 1991 RO rating decision. The veteran also testified to the effect that he is incompetent because of his psychiatric disability and that this condition constitutes good cause for not submitting a timely substantive appeal with the denial of service connection for residuals of a head injury in the August 1991 RO rating decision. While the evidence indicates that a February 1997 RO rating decision determined that the veteran was incompetent to handle his VA affairs, the governing legal criteria does not provide for an extension of time for filing a substantive appeal unless the veteran makes a written requests for such extension before the time limit for filing the substantive appeal. The record does not show that the veteran or his representative submitted a written request for an extension of time for filing the substantive appeal with the August 1991 RO rating decision, denying service connection for residuals of a head injury. If such a written request is received, then and only then, may VA grant an extension for the filing of a substantive appeal based on good cause. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.303; Roy v. Brown, 5 Vet. App. 554 (1993). After consideration of all the evidence, the Board concludes that the veteran did not submit a timely substantive appeal with the denial of service connection for residuals of a head injury in the August 1991 RO rating decision. In view of this conclusion, the Board has no jurisdiction to entertain the veteran's request for appellate review of the denial of service connection for residuals of a head injury in the August 1991 RO rating decision. ORDER The appeal with regard to the timeliness of filing of a substantive appeal concerning the August 1991 RO rating decision, denying service connection for residuals of a head injury, is denied. REMAND A December 1994 RO rating decision denied service connection for residuals of a head injury and the veteran was notified of this determination in the December 1994 supplemental statement of the case. The veteran's representative stated the veteran's disagreement with this determination in a VA Form 1-646 dated in March 1995, noting that the veteran had residuals of a head injury, including a psychiatric disability. This statement from the representative satisfies the requirements for a timely notice of disagreement with the December 1994 RO rating decision. 38 C.F.R. §§ 20.201, 20.300, 20.302(a) (1999). This issue should now be made the subject of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). The Board may not address the December 1994 RO denial of service connection for residuals of a head injury until the veteran has been sent a statement of the case. 38 C.F.R. § 20.200 (1999); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). In view of the above, the case is REMANDED to the RO for the following action: Consistent with existing instructions for dealing with incompetent veterans, including 38 C.F.R. § 3.353, the RO should send the veteran and his representative a statement of the case on the issue of service connection for residuals of a head injury, including a psychiatric disability. The effect of finality of the 1991 rating decision should be addressed. They should be afforded an opportunity to respond to the supplemental statement of the case and advised to submit a VA Form 9, substantive appeal, within 60 days in order to complete the appeal of this issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. E. Day Member, Board of Veterans' Appeals