Citation Nr: 0937891 Decision Date: 10/06/09 Archive Date: 10/14/09 DOCKET NO. 08-04 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Togus, Maine Department of Veterans' Affairs (VA) Regional Office (RO). This case has since been transferred to the RO in White River Junction, Vermont. At the April 2009 video conference hearing, the undersigned Veterans Law Judge informed the Veteran and his representative that there was a question concerning the timeliness of the Notice of Disagreement (NOD) as to the issue of whether new and material evidence has been received to reopen a claim for service connection for myopathy with myalgia. In this context, the Veteran testified in April 2009 that he believed this matter was still on appeal, as he had an MRI taken in March 2005 which demonstrated that the L5 area of the spine might be causing the leg pain and that the L5 area was still damaged from service. The Veteran's spouse explained, during the hearing, that the physicians who performed the MRI thought that the damage to the L5 area of the spine might be causing the leg pain and, when the claim was denied, the Veteran submitted an NOD and assumed that the back and legs were related as one issue, and, as such, both were on appeal. The undersigned Veterans Law Judge notes that while the August 2006 NOD does not reference the specific issue of myopathy with myalgia (claimed as pain in both legs), the Veteran's explanation at the April 2009 hearing appears to be in accord with the dialogue that transpired at the conference he had with a Decision Review Officer (DRO) in November 2006. During this conference, the Veteran stated that he was seeking service connection for pain in his legs, and that he was involved in a motor vehicle accident during his active duty. The Veteran also stated at this time that a grant of service connection for the pain in both legs would satisfy all appellate issues. Since the Veteran's statements in the DRO conference report were made prior to the RO's issuance of the November 2007 Statement of the Case (SOC), this report was apparently accepted by the RO to clarify the August 2006 NOD as contesting the back and legs as one issue on appeal. In so doing, the RO properly addressed the concerns raised by the Veteran, when it reclassified the appealed low back claim, which was engendered by the August 2006 NOD, as service connection for degenerative arthritis of the lumbar with myopathy in the November 2007 SOC. After which, the Veteran filed a timely substantive appeal. Accordingly, the undersigned Veterans Law Judge construes the issue on appeal as listed on the title page. Moreover, in a January 2009 statement to his United States Senator, the Veteran indicated that he has an active appeal on the issue of entitlement to service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia. Notably, however, a review of the record indicates that the Veteran withdrew his substantive appeal of this issue in June 2008. Since the withdrawal of the appeal, as to the issue of service connection for a low back disorder (with myopathy and myalgia), was neither observed nor addressed at the April 2009 hearing, and in light of the principle of fair process, the undersigned Veterans Law Judge will consider, for purposes of this appeal, whether the Veteran timely filed a new substantive appeal as to this issue. The issue of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has shown good cause for extending the time limit to file a new substantive appeal specific to the issue of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia. CONCLUSION OF LAW A new substantive appeal was timely filed, perfecting an appeal of the October 2005 rating decision that denied service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 20.200, 20.101(d), 20.202, 20.204, 20.302, 20.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2009), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. As will be discussed in detail below, the Board determines that a new substantive appeal was timely filed as to the October 2005 denial of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, which results in a favorable determination on this jurisdictional question. As such, the Board finds that no further action is required to comply with the VCAA and the implementing regulations. Pertinent Laws and Regulations Any statutory tribunal, like the Board, must ensure its jurisdiction over a case before deciding its merits, and a potential jurisdictional defect may be raised by the 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). The Board may address questions pertaining to its jurisdictional authority to review a particular case, including, but not limited to, determining whether notices of disagreement and substantive appeals are adequate or timely, at any stage in a proceeding before it, regardless of whether the agency of original jurisdiction addressed such a question. The Board may dismiss any case over which it determines it does not have jurisdiction. 38 C.F.R. § 20.101(d). Appellate review will be initiated by an NOD and completed by a substantive appeal after a Statement of a Case (SOC) is furnished. 38 U.S.C.A. § 7105(a) (West 2002). An appeal consists of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal must either indicate that all of the issues presented in applicable SOCs and supplemental SOCs are being appealed, or must specify the particular issues being appealed. 38 C.F.R. § 20.202. The substantive appeal must be filed within 60 days after mailing of the SOC, or within the remainder of the one year period from the mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302. Extensions of time for filing a substantive appeal may be granted for good cause. 38 C.F.R. §§ 20.303. Withdrawal of an appeal will be deemed a withdrawal of the NOD and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new NOD and, after an SOC is issued, a new substantive appeal, as to any issue withdrawn, provided such ruling would be timely under these rules if the appeal withdrawn has never been filed. 38 C.F.R. § 20.204(c) (2009). Analysis As an initial matter, the Board finds that the question over whether the Board may assert jurisdiction over the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia must be addressed. As noted above, this issue was withdrawn in June 2008. For the foregoing reasons, the Board determines that it may properly assert jurisdiction over this issue as it is still on appeal. The Veteran perfected his appeal on the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia in January 2008. In a statement received on June 2, 2008, the Veteran's representative withdrew the appeal on this issue. This statement was signed by the Veteran's representative. The RO subsequently notified the Veteran, in a June 25, 2008, letter that his request to withdraw the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia was accepted. Thus, the Board finds that the June 2, 2008, statement qualifies as a valid withdrawal of the substantive appeal as to the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia. See 38 C.F.R. § 20.204. In a January 2009 correspondence, the Veteran's United States Senator inquired into the status of the Veteran's appeal. Included in this correspondence was a statement made by the Veteran to his Senator, stating that while he was on active duty, stationed in Germany, he received injuries to the back and legs as a result of a car accident in 1964 or 1965. He also reported that he had filed for compensation and had been denied and he was in the process of his final appeal. In a March 2009 report of contact, the RO contacted the Veteran's representative in person and asked if the Veteran still wanted to have his Board hearing in April 2009 as the notification letter was never sent. The Veteran's representative reported that the Veteran was anxious to have the hearing and requested that it be scheduled for April 2009 with a notification sent to the Veteran. During an April 2009 video conference hearing, the Veteran and his representative reported that they understood that the issue was still on appeal and the Veteran presented testimony on the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia. Neither the Veteran, nor his representative discussed the previous withdrawal of this issue. It appears from the Veteran's testimony that the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia was a significant claim that the Veteran wished to pursue. As such, the testimony provided during the hearing raises the issue of whether the Veteran intended to withdraw his substantive appeal on this matter. The "failure to file a timely [Substantive] Appeal does not automatically foreclose an appeal, render a claim final, or deprive the [Board] of jurisdiction." Rowell v. Principi, 4 Vet. App. 9, 17 (1993). Where there is no indication that the RO closed the appeal for failure to file a timely substantive appeal and the RO treated the veteran's filing as timely, the Board is not deprived of jurisdiction over the claim. See Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that where the RO did not close the appeal, treated the filing as timely, and notified the veteran that his appeal was timely, the Board was not deprived of jurisdiction); Rowell, 4 Vet. App. at 17-18 (holding that the Board was not deprived of jurisdiction where the RO treated an appeal as timely and did not close the appeal); see also Beyrle v. Brown, 9 Vet. App. 24, 28 (1996) (holding that despite the lack of a substantive appeal, Board waived jurisdictional objections by reviewing the claim). The United States Court of Appeals for Veterans Claims (Court) has held that the Board may waive the timely filing of a substantive appeal, even if the veteran has not submitted a request for extension of the time period in which to file the substantive appeal. Beyrle v. Brown, 9 Vet. App. 24, 28 (1996) (citing Rowell v. Principi, 4 Vet. App. 9, 17 (1993)); c.f. Roy v. Brown, 5 Vet. App. 554, 556 (1993) (holding that an extension of time in which to file a substantive appeal could not be granted unless a request for extension was made in accordance with the provisions of 38 C.F.R. § 20.303). Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of "good cause." However, the Court decided in Corry v. Derwinski, 3 Vet. App. 231 (1992), that there is no legal entitlement to an extension of time, and that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. However, the Board also notes that VA regulations specifically state that a request for an extension of the 60-day period for filing a substantive appeal must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. The Court has addressed the issues of whether the language of 38 C.F.R. § 3.109(b) conflicts with that of 38 C.F.R. § 20.303, and, if so, which of these regulations should control. The Court held that 38 C.F.R. § 20.303 applies specifically to the filing of a substantive appeal, and that the two regulations do not conflict; rather the Court found that one is general and the other specific. The Court noted that a familiar tool of statutory construction was the "principle that a more specific statute will be given precedence over a more general one. . . ." Roy v. Brown, 5 Vet. App. 554, 556-557 (1993), citing Busic v. United States, 446 U.S. 398, 404 (1980); Preiser v. Rodriquez, 411 U.S. 475, 489-90 (1973). Significantly, the Court held that 38 C.F.R. § 20.303 takes precedence, and commented that a contrary view as to a regulatory scheme promulgated under statutory authority would make no sense. The one year period after the date of the mailing of an adverse RO determination in which to file a substantive appeal, if that one-year period extends beyond the 60-day period for filing appeal after mailing of the SOC may be extended only for good cause shown. Morgan v. Principi, 16 Vet. App. 20, 24 (2002); 38 C.F.R. §§ 3.109(b), 20.302(b). In this case, the Board finds that the January 2009 correspondence with the Veteran's Senator which included the Veteran's statements to his Senator, constitutes a valid filing of extension of the time limit in which the Veteran may submit his substantive appeal. The Board notes that where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown. See 38 C.F.R. § 3.109(b). In this respect the Board finds that the January 2009 correspondence with the Veteran's Senator also constitutes a valid concurrent substantive appeal, as the Veteran addressed the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia in his statements regarding the injuries in service to his back and legs and that these were currently on appeal with the Board. As such, the Board finds that the Veteran's statements in the January 2009 correspondence constitute a properly requested extension of the time in which to file a substantive appeal and these statements also qualify as a concurrent substantive appeal. With respect to the issue of whether good cause has been shown the Board finds that the Veteran's actions, statements and testimony made, after the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia had been properly withdrawn, constitute good cause by indicating that the Veteran was unaware that this issue had been withdrawn and proceeded with his appeal as if the issue was still on appeal. In this regard, the Board finds that the Veteran's representative alone, properly filed a withdrawal of the appeal on the issue of service connection for degenerative arthritis of the lumbar spine with myopathy and myalgia. In addition, while the Veteran was sent notification of the withdrawal of this issue in June 2008, his subsequent actions and inquiries demonstrated that he understood this issue was still on appeal. The Veteran provided testimony on this issue during the April 2009 video conference hearing, addressing his injuries in service and his current back and leg disabilities resulting from that injury. As such, the Board finds that good cause has been shown, such that the Veteran's January 2009 correspondence, requested after expiration of a time limit, constitutes a properly filed request for extension of the time limit for filing a substantive appeal and concurrent substantive appeal pursuant to VA regulations. 38 C.F.R. §§ 3.109(b), 20.302(b); Morgan v. Principi, 16 Vet. App. 20, 24 (2002). In addition, as the Board has construed the January 2009 documents and supporting evidence in the Veteran's favor, to reinitiate his substantive appeal on the issue of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, this determination is not prejudicial to the Veteran. Accordingly, the Board's resolution is not contrary to the principle of fair process. In light of the foregoing, the Board finds that the issue of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, is currently on appeal before the Board and, as such, jurisdiction over this issue is proper. ORDER A new substantive appeal was timely filed, perfecting an appeal of the October 2005 rating decision that denied service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, and the Board has jurisdictional authority to review this issue. The appeal is granted to this extent only. REMAND With respect to the issue of service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, the Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In statements and testimony presented throughout the duration of the appeal, the Veteran and his wife have maintained that he was injured during active service and has experienced symptoms of low back and leg pain since his discharge from active service. Service treatment reports reflect that the Veteran reported having cramps in the legs upon entry into active service. In addition, he was involved in an automobile accident in June 1965 and was subsequently treated for injuries resulting from that accident including: a laceration of the knee with no artery or nerve involvement; multiple contusions; a contusion of both legs; pain in the legs and back; pain an abrasion of the right knee with a negative neurological examination; rule out back injury; tenderness over the cervical and dorsal vertebra and bilateral knees, including the left femur and right tibia; and complaints of cervical and thoracic back pain. In a June 1965 service treatment report, this injury was found to have incurred in the line of duty. The April 1967 separation examination reflected no findings of abnormalities of the back or legs. Private and VA medical records from July 1983 to September 2007 reflect that the Veteran initially complained of muscle pains in the lower extremities in July 1983 and has been subsequently treated for and diagnosed with: probable myalgic pain of "rheumatic type;" metabolic myopathy; myopathy; possible rheumatological disorder; spondylolisthesis; chronic pain syndrome; myopathy with myalgia; non specific myopathy; myalgias in lower extremities; diffuse muscle aching and pain; intermittent low back pain radiating into both thighs; possible metabolic myopathy; radiculopathy; lower leg pain and weakness; neuropathy; degenerative disc disease with foraminal stenosis; back pain and leg pain with numbness; symptomatic neuropathy; likely musculoskeletal back pain; long term pain most likely muscular in origin; bilateral lower extremity myalgias consistent with neuropathy; peripheral vascular disease; and persistent lower extremity pain. In a July 1983 private report, the Veteran complained of muscle pains since about 1976 and was diagnosed with probable myalgic pain of "rheumatic type." The physician also found that a metabolic myopathy could not be ruled out. Private medical records reflect that Veteran was hospitalized in July 1983 for complaints of lower extremity muscle pains and weakness which was thought to be a possible rheumatological disorder and the Veteran was scheduled for a muscle biopsy. Results from the muscle biopsy in July 1983 revealed myopathy. In a June 1984 private medical record, a private physician concluded in his diagnosis that he presumed the Veteran had spondylolisthesis which caused a large part of the symptoms of back and leg pain, but he also appeared to have chronic pain syndrome associated more with his myopathy. In a January 1992 private report, the Veteran was diagnosed with diffuse muscle aching and pain, intermittent low back pain radiating into both thighs, possible metabolic myopathy and the private physician also concluded in his diagnosis that the Veteran's low back pain radiating into both thighs could be on the basis of irritative radiculopathy of lumbar canal stenosis. VA outpatient treatment reports reflect that a magnetic resonance imaging (MRI) of the spine was taken in March 2005 which revealed degenerative disc disease with some foraminal stenosis. The Veteran was subsequently referred to the spine institute in June 2005 after a determination that his condition was not a surgical issue. In an August 2005 VA examination, the Veteran was diagnosed with chronic low back pain, leg pain, degenerative arthritis of the lumbar spine with myopathy. A differential diagnosis of possible neuropathy and lumbar radiculopathy was also provided. The examiner concluded that with respect to whether the back condition was due to the Veteran's military injury, he could not resolve this issue without resorting to mere speculation. In an October 2005 VA outpatient treatment report, the Veteran was diagnosed with long term pain, most likely muscular in origin. The VA physician found that the MRI findings did not correlate with the Veteran's symptoms. In a March 2007 VA examination of the peripheral nerves, the Veteran was diagnosed with chronic low back pain, bilateral leg pain and degenerative arthritis of the lumbar spine and myopathy. A differential diagnosis of possible neuropathy and lumbar radiculopathy was provided. The examiner concluded that with respect to whether the back condition was due to the Veteran's military injury, he could not resolve this issue without resorting to mere speculation. In a March 2007 VA examination of the lumbar spine, the Veteran was diagnosed with chronic sprain of the lumbar spine. In a September 2007 VA outpatient treatment report, the Veteran's back pain and leg pain were diagnosed as symptomatic neuropathy. The Board finds that additional development in necessary to adjudicate the Veteran's claim, namely, a medical opinion is necessary to determine whether the Veteran's current degenerative arthritis of the lumbar spine with myopathy and myalgia is related to his active military service, including the June 1965 automobile accident, and if any residuals are present from the automobile accident incurred during active service. As there is evidence of an injury to the back and legs during the Veteran's active service as a result of an automobile accident, lay statements of a continuity of symptoms and medical evidence of a current back disability with possible residuals including myopathy in the legs, the Board finds that a VA examination is necessary to obtain an opinion as to whether the Veteran has a current back disability which is related to or was aggravated by his military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for VA orthopedic and neurological examinations by an appropriate specialist (or specialists) to determine the current nature and etiology of the Veteran's low back disorder, to specifically include degenerative arthritis of the lumbar spine with myopathy and myalgia. The claims folder and a copy of this remand must be made available to and reviewed by the examiner in connection with the examination. All tests and studies deemed necessary should be conducted, and the clinical findings should be reported in detail. Based on a review of the records contained in the claims folder, to include Veteran's medical history, and the examination results, the examiner is asked to address the following questions: a.) Has the Veteran developed a low back disorder, to specifically include degenerative arthritis of the lumbar spine with myopathy and myalgia? If so, please specify the diagnosis or diagnoses. b.) If the examiner finds that the Veteran has developed a low back disorder, are any of the symptoms affecting the Veteran's legs (variously diagnosed, as myopathy, myalgia, neuropathy and/or radiculopathy) manifestations of any currently diagnosed low back disorder, to specifically include degenerative arthritis of the lumbar spine? c.) Is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, originated during service, or was otherwise caused by any incident that occurred during service, namely the June 1965 motor vehicle accident in service? d.) Is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, was manifested within one year following the Veteran's discharge from service in April 1967? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against a causal relationship. The examiner is requested to answer the question posed with the use of the "as likely," "more likely," or" less likely" language. The examiner is also asked to provide the rationale used in formulating his or her opinion in the written report. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. The claim for service connection for a low back disorder, to include degenerative arthritis of the lumbar spine with myopathy and myalgia, should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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. 2008). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs