Citation Nr: 0612762 Decision Date: 05/03/06 Archive Date: 05/15/06 DOCKET NO. 03-30 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf. 2. Entitlement to a rating in excess of 30 percent for residuals of shrapnel wound to right calf with damage to muscle group XI. 3. Entitlement to an effective date earlier than May 30, 2002, for the assignment of a 30 percent rating for residuals of shrapnel wound to right calf with damage to muscle group XI. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from May 1965 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that assigned a 30 percent evaluation for residuals of SW to right calf with damage to muscle group XI effective May 30, 2002. The issues of entitlement to a rating in excess of 30 percent and to entitlement to an effective date earlier than May 30, 2002, for the assignment of a 30 percent rating for residuals of shrapnel wound to right calf with damage to muscle group XI are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The appellant's substantive appeal (VA Form 9) received on September 30, 2003, did not include the issue of whether there was CUE in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf. CONCLUSION OF LAW The appellant did not timely perfect an appeal as to the RO action that did not find CUE in a March 1977 rating decision that granted service connection for residuals of a shrapnel wound of the right calf with damage to muscle group XI and assigned a 20 percent evaluation effective from May 30, 1976; thus, the Board has no jurisdiction to consider that issue and it is dismissed. 38 U.S.C.A §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and to assist The Board has given consideration to VA's duties to notify and assist claimants for benefits. 38 U.S.C.A. §§ 5103, 5103A. As discussed below, this case is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. See Manning v. Principi, 16 Vet. App. 534 (where the law, and not the underlying facts or development of the facts, is dispositive of the matter, the duties to notify and assist do not apply). Furthermore, the Board finds that general due process considerations have been complied with. See 38 C.F.R. § 3.103 (2005). It is clear that the veteran was informed of the necessity of filing a timely substantive appeal, particularly in the August 2003 statement of the case (SOC). The veteran was furnished with a VA Form 9, with accompanying instructions, as an enclosure to the SOC. Thus, the Board concludes that the veteran was appropriately notified of the legal requirements pertaining to the filing of substantive appeals. II. Facts and analysis The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2005). Appellate review is initiated by the filing of a NOD and completed by the filing of a substantive appeal after a SOC has been furnished. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201 (2004). Thus, in order to perfect an appeal to the Board, after a SOC has been issued a claimant must timely file a substantive appeal, which consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.302 (2005). The law requires that a substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent possible, the argument should be related to specific items in the SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board must dismiss any appeal over which it lacks jurisdiction. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. Jurisdiction over an issue does not vest in the Board until an appeal to the Board has been properly perfected by the timely filing of an adequate substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (2004). The substantive appeal must be filed within sixty days from the date that the RO mails the SOC to the appellant, 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. The date of mailing of the SOC will be presumed to be the same as the date of the statement of the case for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). Upon request, the time period for filing a substantive appeal may be extended for good cause shown. 38 C.F.R. § 3.109(b) (2004). A request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303 (2005). In a rating decision in December 2002, the RO assigned a 30 percent disability evaluation for residuals of shrapnel wound (SW) to right calf with damage to muscle group XI effective May 30, 2002. The veteran was notified of the decision by letter dated March 6, 2003. The veteran, through his representative, claimed that failure to accurately evaluate the veteran in the rating decision of March 1977 constituted clear and unmistakable error. A Decision Review Officer provided a de novo review of the VA claims folder and concluded that CUE was not found in the 20 percent evaluation for residuals of SW to right calf with damage to muscle group XI established from May 30, 1976. The veteran was notified of the decision in a SOC issued in August 2003 and notified that to complete his appeal, a formal appeal must be filed. A VA Form 9 was enclosed. The Board will construe arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination being appealed set out in a substantive appeal in a liberal manner. 38 C.F.R. § 20.202. However, the Board must conclude in this instance that the veteran did not submit a substantive appeal on the issue of whether there was CUE in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a SW of the right calf. The veteran's substantive appeal received in September 2003 did not include this issue. The veteran clearly stated that he was only appealing the issues he listed. The issue of whether there was CUE in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf was not included in those issues the veteran listed that he desired to appeal. The appeal does not contain any statement that can be remotely construed as an argument concerning error of either fact or law in the determination that CUE was not found in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf. Nor did the veteran or his representative file a request under 38 C.F.R. § 3.109 for extension of time to file an appeal on this issue. The Board has carefully reviewed the record in order to determine whether any other communication by or on behalf of the veteran constitutes an adequate substantive appeal or request for an extension of time under the pertinent law and regulations. The Board has identified no such communication, and the veteran has pointed to none. Therefore, because the veteran did not file a timely substantive appeal, the Board lacks jurisdiction to adjudicate the issue of whether there was CUE in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf. Consequently, his appeal as to this issue must be dismissed. ORDER The claim for CUE in a March 1977 RO decision that assigned an initial evaluation of 20 percent for residuals of a shrapnel wound (SW) of the right calf is dismissed. REMAND After receiving notification in January 2003 that a 30 percent evaluation had been assigned for residuals of SW to the right calf with damage to muscle group XI effective from May 30, 2002, the veteran expressed disagreement with the decision. He agreed with the evaluation but stated that the 30 percent evaluation should have been assigned in May 1976 with an increased evaluation for continuous swelling, decreased plantar flexion and poor dorsiflexion in January 2003. In essence, the veteran is seeking an effective date for a 30 percent evaluation earlier than May 30, 2002. Our review does not find that a statement of the case has been issued on his disagreement with the effective date assigned. In addition, a liberal reading of his statement also indicates that the veteran disagrees with the 30 percent evaluation assigned. The filing of a NOD initiates the appeal process. Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). A statement of the case (SOC) has not been issued with respect to these issues. Accordingly, because a timely NOD regarding these issues has been submitted, a remand is required in order for the RO to provide the veteran a SOC. The United States Court of Appeals for Veterans Claims has held that, when a notice of disagreement has been timely filed, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 U.S.C.A. § 7105(d)(1) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with appropriate notice under the provisions of the VCAA regarding increased rating claims and the assignment of an effective date for an increased rating. 2. Issue a SOC regarding the issue of entitlement for a rating in excess of 30 percent and to an effective date earlier than May 30, 2002, for the assignment of a 30 percent disability evaluation for service-connected residuals of SW to the right calf with damage to muscle group XI. The appellant and his representative are hereby notified that, following the receipt of the SOC concerning these issues, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed should the issues be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action, other than as spelled out within this remand, until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs