Citation Nr: 0613126	
Decision Date: 05/05/06    Archive Date: 05/15/06

DOCKET NO.  04-08 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office (RO) in 
Oakland, California


THE ISSUES

Entitlement to service connection for diabetes mellitus and 
hepatitis C, to include whether the veteran timely appealed a 
September 2000 rating decision, in which the RO denied 
service connection for diabetes mellitus and hepatitis C.  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

L. J. N. Driever, Counsel




INTRODUCTION

The veteran had active service from March 1968 to March 1970.  

This claim comes before the Board of Veterans' Appeals 
(Board) on appeal of a January 2003 determination of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Oakland, California.  

Below, the Board decides favorably the timeliness issue and 
REMANDS the claims of entitlement to service connection for 
multiple sclerosis and hepatitis C to the RO via the Appeals 
Management Center (AMC) in Washington, D.C.


FINDINGS OF FACT

1.  In September 2000, the RO denied the veteran entitlement 
to service connection for multiple sclerosis and hepatitis C.  

2.  In January 2001, the RO received a written statement from 
the veteran, in which he disagreed with the RO's September 
2000 rating decision.

3.  In August 2001, the RO issued a statement of the case.

4.  In September 2001, the RO received from the veteran a 
written statement that can be construed as a substantive 
appeal of the RO's September 2000 rating decision.  


CONCLUSION OF LAW

The veteran timely appealed the September 2000 rating 
decision, in which the RO denied service connection for 
multiple sclerosis and hepatitis C.  38 U.S.C.A. 
§ 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.300, 
20.302, 20.303, 20.305 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In September 2000, the RO denied the veteran entitlement to 
service connection for multiple sclerosis and hepatitis C.  
In January 2001, the RO received a written statement from the 
veteran, in which he disagreed with the RO's September 2000 
rating decision.  In August 2001, the RO issued a statement 
of the case (SOC).

Appellate review is initiated by a notice of disagreement 
(NOD) and completed by a substantive appeal filed after a SOC 
has been furnished to an appellant.  38 U.S.C.A. § 7105(a) 
(West 2002); 38 C.F.R. § 20.200 (2005).  A substantive appeal 
must be filed within 60 days from the date that the agency of 
original jurisdiction 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 60-day period may 
be extended for a reasonable period on request for good cause 
shown.  The request for such an extension must be in writing 
and must be made prior to expiration of the time limit for 
filing the substantive appeal.  38 U.S.C.A. § 7105(d)(3) 
(West 2002); 38 C.F.R. § 20.302(b) (2005).  The substantive 
appeal must be filed with the VA office from which the 
claimant received notice of the determination being appealed 
unless notice was received that the applicable VA records 
were transferred to another VA office.  38 U.S.C.A. § 
7105(b)(1) (West 2002); 38 C.F.R. § 20.300 (2005)

A substantive appeal consists of a properly completed VA Form 
9 (Appeal to Board of Veterans' Appeals) or correspondence 
containing the necessary information.  Proper completion and 
filing of a substantive appeal are the last actions the 
veteran needs to take to perfect an appeal.  38 C.F.R. § 
20.202 (2005).  In the absence of a properly perfected 
appeal, the Board is without jurisdiction to determine the 
merits of the appeal, and the determination becomes final.  
38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 
554, 556 (1993).

In a case in which a written document is to be filed within a 
specified period of time, a response postmarked prior to 
expiration of the applicable time limit will be accepted as 
having been timely filed. In the event that the postmark is 
not of record, the postmark date will be presumed to be five 
days prior to the date of receipt of the document by VA.  In 
calculating this 5-day period, Saturdays, Sundays and legal 
holidays will be excluded. 38 C.F.R. § 20.305(a) (2005).  In 
computing the time limit for filing a written document, the 
first day of the specified period will be excluded and the 
last day included.  Where the time limit would expire on a 
Saturday, Sunday, or legal holiday, the next succeeding 
workday will be included in the computation.  38 C.F.R. § 
20.305(b) (2005).

In this case, the veteran did not submit a VA Form 9 (Appeal 
to Board of Veterans' Appeals) in response to the RO's 
issuance of a statement of the case.  He did, however, submit 
a written statement containing the necessary information to 
perfect his appeal of the RO's September 2000 rating 
decision.  In the statement, received at the RO in September 
2001, the veteran referred to the statement of the case by 
citing "343/211" and indicated that he was submitting the 
attached information to support his claims for service 
connection for multiple sclerosis and hepatitis C.  In so 
indicating, he made clear his intent to continue pursuing his 
appeal with regard to these claims. 

In light of the foregoing, the Board has jurisdictional 
authority to review the claims of entitlement to service 
connection for multiple sclerosis and hepatitis C.  For the 
reasons noted below, however, VA must take action before the 
Board can proceed.


ORDER

The appeal on the issue of whether the veteran timely 
appealed a September 2000 rating decision, in which the RO 
denied service connection for diabetes mellitus and hepatitis 
C, is granted.  




REMAND

The veteran claims entitlement to service connection for 
multiple sclerosis and hepatitis C on the basis that these 
disorders are related to his period of active service.  
Additional action is necessary before the Board decides these 
claims.  

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002), became law.  Regulations 
implementing the VCAA were then published at 
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified 
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005).  The 
VCAA and its implementing regulations are applicable to this 
appeal.

The VCAA and its implementing regulations provide that VA 
will notify the claimant and the claimant's representative, 
if any, of the information and medical or lay evidence not 
previously provided to the Secretary that is necessary to 
substantiate the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion of the evidence the 
claimant is to provide and which portion of the evidence VA 
will attempt to obtain on the claimant's behalf.  They also 
require VA to assist a claimant in obtaining evidence 
necessary to substantiate a claim, but such assistance is not 
required if there is no reasonable possibility that such 
assistance would aid in substantiating the claim.  

The United States Court of Appeals for Veterans Claims 
(Court) has mandated that VA ensure strict compliance with 
the provisions of the VCAA.  See Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  In this case, VA has not strictly 
complied with the notification and assistance provisions of 
the VCAA; therefore, to proceed in adjudicating these claims 
would prejudice the veteran in the disposition thereof.  See 
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 

First, on March 3, 2006, the Court held that the 
aforementioned notice requirements apply to all five elements 
of a service connection claim, including: (1) veteran status; 
(2) existence of disability; (3) a connection between service 
and disability; (4) degree of disability; and (5) effective 
date of disability.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  The Court further held that notice under 
the VCAA must inform the claimant that, if the RO grants his 
service connection claim, it will then assign such an award a 
disability rating and an effective date.  Id.  

In this case, the VCAA notices the RO sent to the veteran 
during the course of his appeal do not satisfy these 
requirements.  Specifically, they do not include any 
information on disability ratings and effective dates.  
Accordingly, on remand, AMC should correct this procedural 
deficiency by sending the veteran another, more comprehensive 
VCAA notice letter that complies with Dingess/Hartman.

Second, during the course of this appeal, the veteran 
identified numerous outstanding medical documents pertinent 
to his claims.  For instance, in written statements received 
in May 2001 and September 2001, he noted that he had received 
pertinent treatment beginning in 1993 at the VA Medical 
Center in San Francisco, beginning in 1975, from Drs. William 
Ellison, Charles Schapp, and Jeff Wachs, in July 1994, from 
Dr. S. Losin, and in January 1998, from Dr. L. Barry Lutz.  
He also noted that he was then receiving pertinent treatment 
at VA facilities in San Francisco and Santa Rosa, including 
neurology, urology, eye and psychiatric outpatient clinics.  
At present, the claims file contains some, but not all, of 
the records of treatment by Dr. Wachs and at the VA Medical 
Center in San Francisco.  On remand, AMC should endeavor to 
obtain the remainder of such records and all other identified 
records in support of the veteran's claims.

Third, under 38 U.S.C.A. § 5103A, VA's duty to assist 
includes providing a claimant a medical examination or 
obtaining a medical opinion when such an examination or 
opinion is necessary to make a decision on a claim.  In this 
case, an examination of the veteran's multiple sclerosis is 
necessary.  The RO afforded the veteran a VA examination in 
April 2000, but a report of that examination is inadequate to 
decide the claim for service connection for multiple 
sclerosis.  Therein, the VA examiner did not offer an opinion 
regarding whether the veteran's multiple sclerosis is related 
to his period of active service, including the veteran's 
presumed Agent Orange exposure.  Inasmuch as there is 
evidence that dioxin may be a powerful nerve toxin that can 
alter the immune system and multiple sclerosis is an 
autoimmune disorder, such an opinion is necessary.  

Fourth, in a written statement received at the RO in February 
2004, the veteran indicated that he was "not pursuing [his] 
claim for service connection on Hepatitis C."  Thereafter, 
in April 2004, his representative included such claim in a VA 
Form 646 (Statement of Accredited Representative in Appealed 
Case).  He noted that the veteran was also claiming service 
connection for hepatitis C.  Based on these conflicting 
statements, on remand, AMC should seek clarification 
regarding whether the veteran intends to withdraw his appeal 
with regard to the claim of entitlement to service connection 
for hepatitis C, and if so, ensure that his withdrawal of 
such claim meets the requirements of 38 C.F.R. § 20.204 
(2005).

This case is REMANDED for the following action:

1.  AMC should contact the veteran and 
ask him to do the following: 

a) clarify whether he intends 
to continue his appeal with 
regard to the claim of 
entitlement to service 
connection for hepatitis C; 

b) advise the veteran that if 
such is not the case, he should 
submit a written statement 
specifically withdrawing such 
claim from appellate review; 
and 

c) provide in writing the 
complete names, addresses and 
dates of treatment of all 
health care providers, VA and 
non-VA, who have evaluated the 
disabilities at issue in this 
appeal and whose records are 
not already in the claims file, 
including the VA Medical Center 
in San Francisco, Drs. Ellison, 
Schapp, Wachs, Losin and Lutz, 
and VA clinics in San Francisco 
and Santa Rosa, California.

2.  After obtaining any necessary 
authorization, AMC should request, obtain 
and associate with the claims file the 
actual clinical records, consultation 
reports, reports of diagnostic testing, 
progress notes, and any other pertinent 
treatment records or evaluation reports 
from all identified health care 
providers.

3.  AMC should arrange for the veteran to 
be afforded a VA examination by a 
specialist for the purpose of determining 
whether his multiple sclerosis is related 
to service, including his presumed Agent 
Orange exposure.  AMC should forward the 
claims file to the examiner for review of 
all pertinent documents therein and ask 
the examiner to confirm in his written 
report that he conducted such a review.  
Following a thorough evaluation, during 
which all indicated tests are performed, 
the examiner should:

a) offer an opinion as to 
whether the veteran's multiple 
sclerosis is at least as likely 
as not (50 percent or greater 
likelihood) related to his 
period of active service, 
including his presumed Agent 
Orange exposure; and

b) provide detailed rationale, 
with specific references to the 
record, for the opinion 
provided.  

4.  If the veteran intends to continue 
his appeal with regard to the claim for 
service connection for hepatitis C and 
AMC receives evidence confirming that the 
veteran currently has such a disorder, 
AMC should arrange for the veteran to be 
afforded a VA examination of such 
disorder for the purpose of determining 
whether it is related to service.  AMC 
should forward the claims file to the 
examiner for review of all pertinent 
documents therein and ask the examiner to 
confirm in his written report that he 
conducted such a review.  Following a 
thorough evaluation, during which all 
indicated tests are performed, the 
examiner should:

a) offer an opinion as to 
whether the veteran's hepatitis 
C is related to his period of 
active service, including his 
presumed Agent Orange exposure; 
and

b) provide detailed rationale, 
with specific references to the 
record, for the opinion 
provided.  

5.  Thereafter, AMC should readjudicate 
the claims on appeal based on all of the 
evidence of record.  If any benefit sought 
on appeal is not granted to the veteran's 
satisfaction, AMC should provide the 
veteran and his representative a 
supplemental statement of the case and an 
opportunity to respond thereto.  

Thereafter, subject to current appellate procedure, the RO 
should return this case to the Board for further 
consideration, if in order.  By this REMAND, the Board 
intimates no opinion as to the ultimate disposition of the 
appeal.  No action is required of the veteran unless he 
receives further notice.  He does, however, have the right to 
submit additional evidence and argument on the matters the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369, 
372 (1999).

The law requires that these claims be afforded expeditious 
treatment.  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 2002) (Historical and 
Statutory Notes) (providing that all claims that are remanded 
by the Board or by the United States Court of Appeals for 
Veterans Claims (Court) for additional development or other 
appropriate action must be handled expeditiously); see also 
VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 
8.44-8.45 and 38.02-38.03 (directing the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court).



______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs