Citation Nr: 0734940	
Decision Date: 11/06/07    Archive Date: 11/19/07

DOCKET NO.  05-04 099	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUE

Whether an appeal of a July 2003 rating decision as to the 
denial of service connection for right knee bursitis with 
degenerative joint disease was timely filed.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

David T. Cherry, Counsel


INTRODUCTION

The veteran served on active duty from March 1969 to June 
1973 and from May 1974 to October 1990. 

This case has come before the Board of Veterans' Appeals 
(Board) on appeal from a determination issued in September 
2004 by the Department of Veterans Affairs (VA) Regional 
Office in Boise, Idaho (the RO) that the veteran's appeal as 
to an RO denial of his claim for service connection for right 
knee bursitis with degenerative joint disease was untimely 
filed.

Procedural history

In a July 2003 rating decision, service connection was denied 
for right knee bursitis with degenerative joint disease.  The 
RO sent the veteran notice of the rating decision and of his 
appellate rights in a letter dated July 15, 2003.  In 
September 2003 veteran filed a timely notice of disagreement 
(NOD) as to the that denial of service connection.  On May 7, 
2004, the RO mailed a statement of the case (SOC) to the 
veteran.  On September 29, 2004, the RO determined that an 
appeal as to the denial of service connection for right knee 
bursitis with degenerative joint disease had not been timely 
filed.  The veteran perfected an appeal as to that 
determination.

Issues not on appeal

In the July 2003 rating decision, increased ratings, 10 and 
20 percent, for service-connected residuals of a left 
acromioclavicular (AC) joint separation and left knee strain 
with degenerative joint disease, respectively, were granted 
effective February 26, 2003.  To the Board's knowledge, the 
veteran has not disagreed with those decisions.  Those issues 
are therefore not in appellate status.  See Archbold v. 
Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. 
§ 7105(a), the filing of a notice of disagreement initiates 
appellate review in the VA administrative adjudication 
process, and the request for appellate review is completed by 
the claimant's filing of a substantive appeal after a 
statement of the case is issued by VA].




FINDING OF FACT

The veteran did not submit a substantive appeal of the July 
2003 rating decision as to the denial of service connection 
for right knee bursitis with degenerative joint disease 
within 60 days after the issuance of the SOC on May 7, 2004 
or within a year after notice of the July 2003 rating 
decision was given.


CONCLUSIONS OF LAW

1.  The veteran failed to submit a timely appeal as to the 
issue of service connection for right knee bursitis with 
degenerative joint disease decided in the July 2003 rating 
decision.  38 U.S.C.A. §§  5107, 7108 (West 2002); 38 C.F.R. 
§ 20.302 (2007).

2.   Because the veteran failed to submit a timely 
substantive appeal of the July 2003 rating decision, the 
Board has no jurisdiction over the issue of service 
connection for right knee bursitis with degenerative joint 
disease and the appeal must be dismissed.  38 U.S.C.A. § 7104  
(West 2002).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The veteran is disputing the RO's finding that he did not 
file a timely appeal as to the denial of service connection 
for right knee bursitis with degenerative joint disease.  In 
essence, he contends that he did not have to file a 
substantive appeal with the regard to the July 2003 rating 
decision as to the service connection for right knee bursitis 
with degenerative joint disease within a year after notice of 
the July 2003 rating decision or within 60 days after the 
issuance of the SOC because the SOC was defective.

In the interest of clarity, the Board will initially review 
various laws generally pertaining to the issue on appeal.  
The Board will then move on to an analysis of the issue.

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the Veterans Claims 
Assistance Act of 2000.  The VCAA includes an enhanced duty 
on the part of VA to notify a claimant as to the information 
and evidence necessary to substantiate a claim for VA 
benefits.  The VCAA also redefines the obligations of VA with 
respect to its statutory duty to assist claimants in the 
development of their claims.  

The VCAA is generally applicable to all claims filed on or 
after the date of enactment, November 9, 2000, or filed 
before the date of enactment but not yet final as of that 
date.  However, for reasons expressed immediately below, the 
Board finds that resolution of the issue on appeal is based 
on the operation of law and that the VCAA is not applicable.  
See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) 
[the Board must make a determination as to the applicability 
of the various provisions of the VCAA to a particular claim].

The facts in this case are not in dispute.  In Manning v. 
Principi, 16 Vet. App. 534 (2002), citing Livesay v. 
Principi, 15 Vet. App. 165 (2001), the United States Court of 
Appeals for Veterans Claims held that the VCAA has no effect 
on an appeal where the law, and not the underlying facts or 
development of the facts, is dispositive of the matter.  The 
Board finds that such is the case as to the issue here on 
appeal.  Application of pertinent provisions of the law and 
regulations will determine the outcome; no amount of 
additional development would add to the record.

The Board adds that general due process concerns have been 
satisfied in connection with this appeal.  See 38 C.F.R. § 
3.103 (2007).  The record shows that appeal of the timeliness 
issue was fully developed for appellate review after the 
veteran's filing of a timely notice of disagreement in 
response to the September 2004 adverse determination on the 
timeliness of appeal issue.  He was furnished with a 
statement of the case addressing the timeliness issue in 
January 2005.  See 38 C.F.R. § 19.34 (2007) [the matter of 
the timeliness of filing of a substantive appeal is itself an 
appealable issue, and if a claimant or representative 
protests an adverse determination by the agency of original 
jurisdiction, the claimant should be furnished with a SOC]; 
see also Bernard v. Brown, 4 Vet. App. 384 (1993).

The veteran has been accorded ample opportunity to present 
evidence and argument in support of his appeal.  His 
representative has presented argument on his behalf.  He has 
not requested a Board hearing on this matter.  

Accordingly, the Board will proceed to a decision.

Pertinent law and regulations

Appellate review of an RO decision is initiated by a notice 
of disagreement and completed by a substantive appeal after a 
statement of the case is furnished.  
38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2007).

The regulations clearly indicate that a SOC "must be complete 
enough to allow the [veteran] to present written and/or oral 
arguments before the Board."  See 38 C.F.R. § 19.29 (2007).  
To that end, the SOC must contain:

(a) A summary of the evidence in the case relating 
to the issue or issues with which the [veteran] or 
representative has expressed disagreement;

(b) A summary of the applicable laws and 
regulations, with appropriate citations, and a 
discussion of how such laws and regulations affect 
the determination; and

(c) The determination of the agency of original 
jurisdiction on each issue and the reasons for each 
such determination with respect to which 
disagreement has been expressed.

 See 38 C.F.R. § 19.29(c) (2007).

After the statement of the case is provided to the claimant, 
a formal appeal must be filed either by the claimant 
personally or his or her authorized representative within 60 
days from the date the statement of the case is mailed, or 
within the remainder of the one-year period from the date the 
notification of the RO decision was mailed, whichever period 
ends later.  See 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 
C.F.R. §§ 20.301(a), 20.302(b) (2007); see also Rowell v. 
Principi, 4 Vet. App. 9, 17 (1993) [where a claimant did not 
perfect an appeal by timely filing a substantive appeal, the 
RO rating decision became final].  

By regulation the substantive appeal must consist of either 
"a properly completed VA Form 1-9. . . or correspondence 
containing the necessary information."  Cuevas v. Principi, 3 
Vet. App. 542, 546 (1992); 38 C.F.R. § 20.202 (2007).

Perfecting an appeal to the Board is part of a clear and 
unambiguous statutory and regulatory scheme which requires 
the filing of both a notice of disagreement and a formal 
appeal.  See 38 U.S.C.A. § 7105; see also Roy v. Brown, 5 
Vet. App. 554 (1993).  The formal appeal permits the 
appellant to consider the reasons for an adverse RO decision, 
as explained in the statement of the case, and to formulate 
and present specific arguments relating to errors of fact or 
law made by the RO.  38 U.S.C.A. § 7105(d)(3); Roy, 5 Vet. 
App. at 555.

Upon request, the time period for filing a substantive appeal 
may be extended for good cause shown.  38 C.F.R. § 3.109(b) 
(2007); but see Corry v. Derwinski, 3 Vet. App. 231 (1992) 
[there is no legal entitlement to an extension of time, 
rather, section 3.109(b) commits the decision to the sole 
discretion of the Secretary].  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.  38 C.F.R. § 20.303 (2007).

If there is a failure to comply with the above-cited law and 
regulations governing the filing of appeals, it is incumbent 
on the Board to reject the application for review on appeal.  
See 38 U.S.C.A. §§ 7105(d)(5), 7108 (West 2002); see also 
Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [Board has the 
jurisdiction - indeed, the obligation - to assess its 
jurisdiction].

As noted by the United States Court of Appeals for the 
Federal Circuit, "it is well-established judicial doctrine 
that any statutory tribunal must ensure that it has 
jurisdiction over each case before adjudicating the merits, 
that a potential jurisdictional defect may be raised by the 
court or tribunal, sua sponte or by any party, at any stage 
in the proceedings, and, once apparent, must be adjudicated."  
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) 
(citations omitted).

Procedural history

The veteran has two service-connected orthopedic disabilities 
- residuals of a left AC joint separation hereinafter "left 
shoulder disability", and left knee strain with degenerative 
joint disease hereinafter "left knee disability".  In 
February 2003, the veteran claimed service connection for a 
right knee disability secondary to his service-connected left 
knee disability.  In the July 2003 rating decision, service 
connection was denied for right knee bursitis with 
degenerative joint disease, secondary to the service-
connected left knee disability 
  
The RO sent the veteran notice of the rating decision and of 
his appellate rights in a letter dated July 15, 2003.  The 
veteran filed a timely notice of disagreement (NOD) as to 
that denial of service connection in September 2003.  On May 
7, 2004, the RO mailed a statement of the case (SOC) to the 
veteran.  That SOC listed the issue as "service connection 
for right knee bursitis as secondary to the service-connected 
disability of residuals, left acromioclavicular (AC) joint 
separation."  The veteran was provided with his appeal 
rights.  In particular, he was informed as follows:

You must file your appeal with this office within 60 
days from the date of this letter or within the 
remainder, if any, of the one-year time period from the 
date of the letter notifying you of the action that you 
have appealed.  If we do not hear from you within this 
period, we will close your case.  If you need more time 
to file your appeal, you should request more time before 
the time limit for filing your appeal expires. 
  
See the May 7, 2004 letter from the RO to the veteran , with 
a copy to his representative [emphasis as in the original].

No substantive appeal was filed.  On September 10, 2004, the 
veteran's representative requested another SOC, claiming that 
the May 2004 SOC was "incorrect".

As has been described in the Introduction, on September 29, 
2004 the RO determined that an appeal as to the July 
2003denial of service connection for right knee bursitis with 
degenerative joint disease had not been timely filed.  The 
veteran perfected an appeal as to that determination.

Analysis

The RO found that the veteran did not file a timely appeal as 
to its July 2003 rating decision which denied service 
connection for a right knee disability.

The veteran and his representative do not contend that a 
substantive appeal was in fact filed.  Rather, they argue 
that because the RO misstated the issue in the May 2004 SOC 
as "service connection for right knee bursitis as secondary 
to the service-connected disability of residuals, left 
acromioclavicular (AC) joint separation", 
i.e., secondary to the service-connected right shoulder 
disability, rather than as secondary to the service-connected 
left knee disability, the SOC is a legal nullity.  They 
further argue that because of this alleged mistake the 
veteran did not have to submit a substantive appeal of the 
July 2003 rating decision in July 2004.  
The veteran and his representative further assert that, 
instead, the RO should have issued another SOC correctly 
stating the issue on appeal before the veteran had to file a 
substantive appeal.

In essence, although not citing to the regulation the veteran 
and his representative are asserting that the SOC was not 
"complete to allow [the veteran] to present written and/or 
oral argument before the Board" and that the SOC did not 
contain the "determination of the agency of original 
jurisdiction on [the issue of service connection for right 
knee bursitis with degenerative joint disease as secondary to 
the service-connected left knee disability] and the reasons 
for each such determination with respect to which 
disagreement has been expressed."  See 38 C.F.R. § 19.29.  
The Board rejects this argument and finds that the May 2004 
SOC is adequate pursuant to 38 C.F.R. § 19.26.

It is undisputed that the May 2004 SOC denied the veteran's 
secondary service connection claim.  It is further undisputed 
that the secondary service connection claim was the only 
issue in appellate status at that time (i.e. an issue as to 
which a NOD had been filed.  The sole contention advanced by 
the veteran is that the issue was misstated in the SOC as 
being secondary to the left shoulder disability rather than 
as to the left knee disability as had been claimed by the 
veteran.  It is further undisputed that the RO did in fact 
mischaracterize the issue on page 1 of the SOC.  

However, although the May 2004 SOC misstated the issue on 
page 1 and even though paragraph one of the Reasons and Bases 
section of the SOC discusses service connection as secondary 
to the service-connected left shoulder disability, the second 
and third paragraphs in the Reasons and Bases section clearly 
address the issue of service connection for the right knee 
disability as secondary to the service-connected left knee 
disability, the veteran's claimed theory of entitlement. 
Moreover, the decision in the SOC - "service connection for 
right knee bursitis is denied" - clearly and unequivocally 
addressed the veteran's claim and informed him in no 
uncertain terms that the claim had been denied.  

Given that the second and third paragraphs of the SOC's 
Reasons and Bases section address the theory of service 
connection secondary to the service-connected the left knee 
disability which was propounded by the veteran, he was 
clearly on notice that the SOC was denying his claim of 
entitlement to service connection for the right knee 
disability secondary to the service-connected left knee 
disability.  In other words, the SOC was sufficiently 
"complete to allow [the veteran] to present written and/or 
oral argument before the Board" and contained the 
"determination of the agency of original jurisdiction on 
[the issue of service connection for right knee bursitis with 
degenerative joint disease as secondary to the service-
connected left knee disability] and the reasons for each such 
determination with respect to which disagreement has been 
expressed."  See 38 C.F.R. § 19.29.  Therefore, the SOC 
meets the requirements of 38 C.F.R. § 19.29.  

Moreover, the notice letter accompanying the SOC informed 
that the veteran if he needed more time to file his appeal, 
he should request more time before the time limit for filing 
his appeal expired.  See 38 C.F.R. § 3.109 (2006).  If the 
SOC caused as much confusion to the veteran and his 
representative as they claimed in September 2004 and 
afterwards, either the veteran or his representative should 
have requested an extension to file his appeal or otherwise 
sought clarification of the matter.  Neither the veteran nor 
his representative made such a request.  

The veteran and representative could also have filed a 
substantive appeal to preserve his rights [a VA Form 9 had 
been provided by the RO as an attachment to the May 7 2004 
SOC notice letter] and argued the fine points of the SOC at 
their leisure.  

It strikes the Board as somewhat disingenuous for the veteran 
to contest the adequacy of the SOC only after the appeal 
period had expired.  It is abundantly clear that his claim 
for service connection for the right knee disability 
secondary to the service-connected left knee disability was 
being denied in that SOC.  That was in fact the only issue on 
appeal.  It was therefore incumbent upon the veteran to take 
action, and not ignore the SOC.

Since the May 2004 SOC is adequate pursuant to 38 C.F.R. 
§ 19.29 as to the denial of service connection for a right 
knee disability as secondary to the service-connected left 
knee disability, the veteran was required to submit a 
substantive appeal within 60 days after the issuance of the 
SOC on May 7, 2004, or within a year after notice of the July 
2003 rating decision was given, in order to perfect his 
appeal of that denial.  The veteran did not file such a 
document within that time period, and he does not contend 
that he did so.  

In short, for reasons and bases discussed above, the Board 
finds that a timely substantive appeal was not received with 
respect to the July 2003 rating decision as to the denial of 
service connection for right knee bursitis with degenerative 
joint disease.  If there is a failure to comply with the law 
or regulations, it is incumbent upon the Board to reject the 
application for review on appeal.  38 U.S.C.A. §§ 7105, 7108; 
Roy, supra.; Rowell v. Principi, 4 Vet. App. 9 (1993).  
Because the veteran did not timely file substantive appeal 
regarding the July 2003 rating decision as to the denial of 
service connection for right knee bursitis with degenerative 
joint disease, the Board lacks jurisdiction to adjudicate the 
issue on the merits.  His appeal must be dismissed.  See 38 
U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.4, 20.200, 20.201, 
20.202, 20.302.   See Roy, supra.; see also Fenderson v. 
West, 
12 Vet. App. 119, 128-31 (1999) [discussing the necessity to 
filing a substantive appeal which comports with governing 
regulations].

The appeal is accordingly dismissed.



ORDER

The appeal of the July 2003 rating decision as to the denial 
of service connection for right knee bursitis with 
degenerative joint disease is dismissed.



____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs