Citation Nr: 0302820 Decision Date: 02/13/03 Archive Date: 02/24/03 DOCKET NO. 99-06 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether the veteran's claim of entitlement to service connection for skin disorders other than genital herpes, as due to exposure to Agent Orange, was timely appealed. 2. Whether the veteran's claim for entitlement to an effective date earlier than July 21, 1997, for a compensable rating for genital herpes was timely appealed. 3. Whether the veteran's claim of entitlement to service connection for tinnitus was timely appealed. 4. Whether the veteran's claim of clear and unmistakable error in the rating decisions of October 27, 1978, December 29, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes was timely appealed. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The veteran had active military service from June 1967 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March, May and September 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In a May 2001 decision, the Board found that clear and unmistakable error (CUE) occurred in a March 1988 rating decision that reduced the veteran's disability evaluation for post-traumatic stress disorder from 30 percent to 10 percent and restored the 30 percent evaluation. In a separate decision, dated May 2001, the Board set forth the complex procedural history of the veteran's claims and denied his claim for an increased rating for genital herpes. In its reasoning, the Board noted that, while it appeared the veteran essentially contended that he should be granted a separate disability rating based upon secondary psychiatric symptoms, the veteran was granted a permanent and total rating based upon his service-connected post-traumatic stress disorder and, thus, was already in receipt of the maximum allowable benefit available for such symptoms. The Board found that a separate disability evaluation based upon mental or emotional distress caused by his genital herpes was not warranted. Also in May 2001, the Board remanded the matters of entitlement to a skin disorder other than genital herpes, claimed as due to exposure to herbicides in service and entitlement to an effective date prior to July 21, 1997, for the assignment of a compensable disability evaluation for genital herpes to the RO for issuance of a statement of the case (SOC). In an April 2000 written statement, the veteran noted that a 100 percent schedular evaluation for post-traumatic stress disorder was granted, effective February 26, 1998 and that, in December 1999, the rating was deemed permanent and total. He requested that the permanency rating be assigned the "earlier effective date of February 26, 1998[,] for the sole purpose of determining my wife's future" dependency and indemnity (DIC) payments. According to an August 2001 deferred rating, the RO indicated that the veteran appeared to have raised a claim for an earlier effective date for "permanent and total" (P & T) status and noted that the issue might be handled without a rating (action) by informing the veteran that DIC based on 38 U.S.C.A. § 1318 was based on the date that the veteran was granted 100 percent, not the date that the "P & T" status was granted. A December 2001 Report of Contact (VA 119), reflects that an RO representative talked with the veteran on the telephone and explained how DIC was administered. According to the record, the telephone conversation "satisfied [the veteran's] concern for an earlier effective ...date". It was noted that the veteran "withdrew his claim for a earlier eff[ective] date for" a permanent and total rating for pension purposes. In light of the above, the Board considers that the RO has effectively addressed the veteran's concern as to this matter. Further, in the May 1998 rating determination, the RO denied service connection for peripheral neuropathy. However, in a written statement dated September 18, 2001, the veteran said he had "dropped" his claim for peripheral neuropathy. The Board considers the veteran's statement a withdrawal of his appeal of the claim for entitlement to service connection for peripheral neuropathy. See 38 C.F.R. § 20.204(b) (2002). As noted in the Board's May 2001 decision, the March 1998 rating decision denied a claim of entitlement to service connection for hearing loss, and the veteran perfected his appeal as to that issue. However, in a substantive appeal received in February 1999, the veteran withdrew his claim as to that issue. Id. Nevertheless, in a December 2001 letter, the RO advised the veteran of the new Veterans Claims Assistance Act (VCAA) and duty to assist regulations regarding his claims of entitlement to service connection for tinnitus and hearing loss. Because the new law changed the requirement regarding the need to submit a well-grounded claim, the RO advised the veteran that his claims were going to be reviewed again and he was invited to submit additional evidence in support of his claims. In a January 2002 written statement, as noted above, the veteran replied to the RO's letter. It does not appear from the claims folder that the RO has yet reconsidered the veteran's claims. Regardless, these claims are not currently before the Board. In a separate December 2001 letter, the RO advised the veteran that it was working on his claims for service connection for a cervical disorder and increased ratings for tinea pedis and headaches and he was invited to submit additional evidence in support of his claims. The veteran responded to the RO in the January 2002 written statement. FINDINGS OF FACT 1. In a March 1998 rating decision, the RO denied the veteran's claim of entitlement to service connection for skin disorders other than genital herpes as due to exposure to Agent Orange. The veteran was notified of the RO's determination as to this issue in a letter dated March 6, 1998. 2. In a May 1998 rating decision, the RO denied the veteran's claim of entitlement to service connection for tinnitus. The veteran was notified of the RO's determination as to this issue in a letter dated May 4, 1998. 3. In May 1998, the veteran filed a timely notice of disagreement (NOD) as to the matter of entitlement to service connection for tinnitus. In July 1998, the veteran filed a timely NOD as to the matter of entitlement to service connection for skin disorders other than genital herpes as due to exposure to Agent Orange. 4. In a September 1998 rating decision, the RO denied the veteran's claims of CUE in the rating decisions of October 27, 1978, December 29, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes and an effective date earlier than July 21, 1997, for the award of a compensable disability evaluation for genital herpes. The veteran was notified of the RO's determination as to these issues in a letter dated September 9, 1998. 5. In December 1998, the veteran filed a timely NOD as to the matters of an earlier effective date and CUE. 6. In March 1999, the veteran filed a completed Appeal to the Board of Veterans' Appeals (VA Form 9) disagreeing with the RO's denial of service connection for tinnitus and asserting that his skin disorders were related to service- connected tinea pedis and Agent Orange. 7. An SOC was issued on December 30, 1999, as to the matters of entitlement to service connection for tinnitus and CUE in the 1978 and 1979 rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes. 8. The record further reflects that the veteran's written substantive appeal, on a VA Form 9, as to the matters of service connection for tinnitus and CUE, was received on April 25, 2000. 9. An SOC was issued on October 26, 2001, as to the matters of service connection for skin disorders and an earlier effective date, and as to the matter of the timeliness of the substantive appeal as to the issues of service connection for tinnitus and CUE. A written response regarding the issue of timeliness of the substantive appeal of the matters of service connection for tinnitus and CUE, was received from the veteran in January 2002. 10. A completed VA Form 9, signed by the veteran was received on May 21, 2002, that addressed the issues of service connection for skin disorders, an earlier effective date and the timeliness of the substantive appeals for his claims of service connection for tinnitus and CUE. CONCLUSIONS OF LAW 1. The veteran failed to submit a timely substantive appeal regarding the issue of entitlement to service connection skin disorders other than genital herpes, as due to exposure to Agent Orange; thus, the Board has no jurisdiction over this matter, and the appeal must be dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302 (2002). 2. The veteran failed to submit a timely substantive appeal regarding the issue of entitlement to an effective date earlier than July 21, 1997, for the award of a compensable disability evaluation for genital herpes; thus, the Board has no jurisdiction over this matter, and the appeal must be dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302 (2002). 3. The veteran failed to submit a timely substantive appeal regarding the issue of entitlement to service connection for tinnitus; thus, the Board has no jurisdiction over this matter, and the appeal must be dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302 (2002). 4. The veteran failed to submit a timely substantive appeal regarding the issue of whether there was CUE in the rating decisions of October 27, 1978, December 29, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes; thus, the Board has no jurisdiction over this matter, and the appeal must be dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The record reveals that in mid 1997, the veteran submitted statements raising a claim of entitlement to service connection for skin disorders other than genital herpes as due to exposure to Agent Orange. In November 1997, the RO received the veteran's claim of entitlement to service connection for tinnitus and, in March and April 1998, he submitted statements raising CUE in the RO's 1978 and 1979 rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes. In April 1998, the veteran raised a claim of entitlement to an earlier effective date, prior to July 21, 1997, for the award of a compensable disability evaluation for genital herpes. In a March 1998 decision, the RO denied the veteran's claim of entitlement to service connection for skin disorders other than genital herpes, as due to exposure to Agent Orange. In a letter dated March 6, 1998, the RO notified the veteran of its action on his claim, enclosed a copy of the rating decision and also enclosed a copy of VA Form 4107, that explained his procedural and appellate rights. A copy of the notification was sent to his representative. In a May 1998 decision, the RO denied the veteran's claim of entitlement to service connection for tinnitus. In a letter dated May 4, 1998, the RO notified the veteran of its action on his claim, enclosed a copy of the rating decision and also enclosed a copy of the VA Form 4107 that explained his procedural and appellate rights. A copy of the March 1998 notification was sent to his representative. In a statement filed in May 1998, the veteran objected to the RO's denial of his claim for service connection for tinnitus. In a statement filed in July 1998, the veteran reiterated his belief that he experienced various skin problems, other than genital herpes, due to exposure to Agent Orange. This statement was construed by the Board as a timely NOD with the RO's March 1998 denial of the claim. In a September 1998 decision, the RO denied the veteran's claims of entitlement to an earlier effective date, prior to July 21, 1997, for the award of a compensable disability evaluation for genital herpes and CUE in the October 27 and December 29, 1978 and April 11 and June 18, 1979, rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes. In a letter dated September 9, 1998, the RO notified the veteran of its action on his claims, enclosed a copy of the rating decision, and also enclosed a copy of VA Form 4107 that explained his procedural and appellate rights. A copy of the September 1998 notification was sent to his representative. In December 1998, the RO received the veteran's notice of disagreement, expressly disagreeing with the RO's denial as to his claims for an earlier effective date and CUE. In March 1999, the veteran filed a completed Appeal to the Board of Veterans' Appeals (VA Form 9). In it, he disagreed with the RO's denial of service connection for tinnitus and asserted that his skin disorders were related to his service- connected tinea pedis and Agent Orange. In December 1999, the RO issued an SOC that addressed the claims of service connection for tinnitus and CUE in the 1978 and 1979 rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes. In a letter accompanying the SOC, the RO advised the veteran that, if he wished to continue his appeal, he would need to file a formal appeal by completing and filing an Appeal to the Board of Veterans' Appeals (VA Form 9). The RO referred the veteran to the Instructions attached to the VA Form 9 that was furnished to him. A copy of the December 1999 notification was also sent to his representative. On April 25, 2000, the RO received a completed VA Form 9 from the veteran. In an August 2001 letter, the RO advised the veteran that the appeal period had ended March 2, 2000, regarding the matters of entitlement to service connection for tinnitus and whether there was CUE in the 1978 and 1979 rating decisions. The RO noted that the veteran's VA Form 9 was not submitted on time and the rating decisions were therefore final. In a written statement dated and received in September 2001, the veteran disagreed with the RO's decision that his VA Form 9 was not timely filed. In October 2001, the RO issued an SOC that addressed the issues of whether a timely substantive appeal was received as to the issues of service connection for tinnitus and whether there was CUE in the October 27 and December 29, 1978, and April 11 and June 18, 1979, rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes. The October 2001 SOC also addressed the claims of service connection for skin disorders other than genital herpes, as due to exposure to Agent Orange and an effective date prior to July 21, 1997, for the award of a compensable disability evaluation for genital herpes. In a letter accompanying the SOC, the RO advised the veteran that, if he wished to continue his appeal, he would need to file a formal appeal by completing and filing an VA Form 9. The RO referred the veteran to the Instructions attached to the VA Form 9 that was furnished to him. A copy of that October notification was also sent to his representative. On January 29, 2002, the RO received a written statement from the veteran that addressed the timeliness of his substantive appeal for his CUE claim and claims for service connection a cervical spine disorder, tinnitus and hearing loss and for increased ratings for tinea pedis and headaches. The veteran's statement was signed and dated January 21, 2002. On May 21, 2002, the RO received the veteran's VA Form 9 that was signed and dated May 7, 2002. On it, the veteran addressed the issues of service connection for skin disorders, an effective date prior to July 21, 1997, for the award of a compensable disability evaluation for genital herpes, the timeliness of his appeals for service connection for tinnitus, and whether there was CUE in the 1978 and 1979 rating decisions. In September 2002, the Board sent the veteran a letter in which he was advised that it appeared that a timely substantive appeal had not been filed with respect to the claims for entitlement to service connection for skin disorders other than genital herpes as due to exposure to Agent Orange and an effective date earlier than July 21, 1997 for the award of a compensable disability evaluation for genital herpes. The Board offered the veteran the opportunity to explain why he thought the appeal had been filed on time, and to submit evidence to show that it was filed on time. He was also told that he would have 60 days within which to respond to the letter. A copy of the letter was sent to the veteran's representative. On December 16, 2002, the Board received the veteran's response, signed by him and dated December 11, 2002. II. Analysis Pursuant to 38 U.S.C.A. § 7105(a), a request for appellate review by the Board of a decision by the RO is initiated by an NOD and completed by a substantive appeal after an SOC has been furnished. See 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or correspondence containing the necessary information. If the SOC and any prior supplemental statement of the case (SSOC) addressed several issues, the substantive appeal must either indicate that an appeal is being perfected as to all of those issues or must specifically identify the issues being appealed. The 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 being appealed. Proper completion and filing of a substantive appeal are the last actions the appellant needs to take in order to perfect an appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202. 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. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). The date of mailing of the letter of notification will be presumed to be same as the date of that letter, for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Notice for VA purposes is a written notice sent to the claimant's latest address of record. 38 C.F.R. § 3.1(q) (2002). The U.S. Court of Appeals for Veterans Claims (Court) has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of both an NOD and a substantive appeal. When an appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the agency of original jurisdiction. Roy v. Brown, 5 Vet. App. 554, 556 (1993). An application for review on appeal shall not be entertained by the Board unless it is in conformity with the provisions set forth above. 38 U.S.C.A. § 7108. Under 38 U.S.C.A. § 7105(d)(3), questions as to timeliness or adequacy of response shall be determined by the Board. In Marsh v. West, 11 Vet. App. 468 (1998), the Court held that the Board must assess its jurisdiction before addressing the merits of a claim. The Court further held, however, that it could be prejudicial to the veteran for the Board to address jurisdictional questions in the first instance without affording an appellant the right to present argument and evidence on those questions. More recently, VA's General Counsel held that the Board has the authority to adjudicate or address in the first instance the question of timeliness of a substantive appeal, and may dismiss an appeal when not timely perfected. Under such circumstances, however, the General Counsel indicated that the claimant should be first afforded appropriate procedural protections to assure adequate notice and opportunity to be heard on the question of timeliness. VAOPGCPREC 9-99 (Aug. 18, 1999). To effectuate the aforementioned opinion of the General Counsel, the Secretary of Veterans Affairs issued amendments to 38 C.F.R. §§ 20.101 (Jurisdiction of the Board). See 66 Fed. Reg. 53,339 (Oct. 22, 2001). The new regulatory provisions were effective November 1, 2001. Since the additional development procedures mandated in that issuance are consistent with the holding in the General Counsel's opinion, and mirror the action accomplished in the present case, the Board finds that there is no prejudice in the veteran's not having been personally notified of the amendments during the pendency of this appeal. Having reviewed the complete record, the Board finds that the veteran failed to perfect his appeal with regard to his claims of entitlement to service connection for tinnitus and for skin disorders other than genital herpes as due to exposure to Agent Orange, whether there was CUE in the 1978 and 1979 rating decisions that assigned and continued a noncompensable disability evaluation for genital herpes, and entitlement to an effective date earlier than July 21, 1997, for the award a compensable disability evaluation for genital herpes. By statute and regulation, an appeal must be perfected within one year of the date of notice of the initial adverse rating or within 60 days after the issuance of an SOC, whichever period ends later. Based upon the RO's date of mailing of the rating decision denying the veteran's claims for service connection for skin disorders in March 1998 and for tinnitus in May 1998 and for an earlier effective date and CUE in September 1998, one year from the date of notice of the initial rating decisions as to the instant matters fell in March 1999, May 1999 and September 1999, respectively. Moreover, the record reflects that the SOC was mailed to the veteran on December 30, 1999, as to the matters of service connection for tinnitus and CUE, so 60 days from that issuance was March 2, 2000. An SOC was also mailed to the veteran on October 26, 2001 as to the matters of service connection for skin disorders and an earlier effective date (as well as to the issue of the timeliness of the substantive appeal of his claims for service connection for tinnitus and CUE), so 60 days from that issuance was December 29, 2001. One year from the date of the notice of the rating actions on appeal was March 6, 1999, May 4, 1999 and September 9, 1999, respectively. However, the earliest document filed by the veteran remotely regarding the issues of service connection for tinnitus and CUE, following the December 1999 SOC was the VA Form 9 received at the RO on April 25, 2000. The earliest document filed by the veteran regarding the issues of service connection for skin disorders and an earlier effective date following the October 2001 SOC was the VA Form 9 received at the RO on May 21, 2002. The envelopes that transmitted the VA Form 9s are not in the claims file, so the Board presumes that they were mailed within three days prior to the date of receipt. See 38 C.F.R. § 20.305. The Board has reviewed the record in this case and has not identified any document filed within the requisite period that can be construed as a timely substantive appeal regarding any of the claimed four matters. Furthermore, although the Board is inclined to regard oral testimony at a recorded hearing as sufficient to constitute a substantive appeal, there is no testimony of record regarding these issues within 60 days after the date of the issuance of either SOC, or within one year after the date of the notice of the initial rating decision. See e.g.,Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (holding that testimony at a hearing, once reduced to writing, can be construed as an NOD). The evidence reflects that the veteran was advised of the necessity to file his appeal within one year from the dates of notice of the initial denials or 60 days after the date of the statement of the case, and he was also advised of what was required of him if he needed more time to do so. His representative was also aware of the time constraints. The veteran did comply with appellate procedures to the extent of filing a timely NOD as to the initial denial of his claims, but did not comply with the required procedure for perfecting his appeal after his receipt of the SOC, as instructed in the transmittal letter that accompanied the SOCs in December 1999 and October 2001. VA regulations set forth specific requirements for perfecting an appeal to the Board, and any request for an extension of the 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 or other response to the SOC. See 38 C.F.R. § 20.303. Any request for an extension of time to file the appeal in this case would have to have been filed on or before March 6, 1999, as to the issue of entitlement to skin disorders other than genital herpes, as due to exposure to Agent Orange); on or before May 4, 1999, as to the issue of entitlement to service connection for tinnitus; and on or before September 9, 1999, as to an effective date earlier than July 21, 1997, for the award of a compensable disability evaluation for genital herpes and whether there was CUE in the 1978 and 1979 rating decisions. There is no evidence of record, nor has it been contended, that the veteran ever requested an extension of time to file his substantive appeal as to these claims. Notwithstanding the above, the General Counsel has held that, if a claimant has not yet perfected an appeal and VA issues an SSOC in response to evidence received within the one-year period following the mailing date of notification of the action being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the SSOC to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. To whatever extent language in 38 C.F.R. § 20.304 might be interpreted to provide otherwise, it has been held to be invalid. VAOPGCPREC 9-97 (Feb. 11, 1997). Pursuant to 38 C.F.R. § 3.109 (2002), 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, but 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. In this instance, the veteran has provided no basis for a finding that such good cause exists. In fact, in May 1998, he stated that he disagreed with the RO's May 1998 rating decision, that was furnished to him with the May 4, 1998, notice letter from the RO regarding the matter of service connection for tinnitus. In July 1998, he essentially stated that he disagreed with the RO's March 1998, rating decision, that was furnished to him with the March 6, 1998, notice letter from the RO regarding the matter of service connection for skin disorders. In December 1998, he stated that he disagreed with the RO's September 1998 rating decision, that was furnished to him with the September 9, 1998, notice letter regarding the matter of an earlier effective date for the award of a compensable disability evaluation for genital herpes and CUE in the 1978 and 1979 rating decisions. Thus, he was clearly placed on notice of the steps in the appellate process. The regulations clearly set forth the time limits for filing a timely substantive appeal. The veteran did not file his appeal within these statutory guidelines. 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, supra, at 556-557, 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. As previously indicated, there is no evidence of record in this case that the veteran ever requested an extension of time to file his substantive appeal as to these matters. Moreover, in this case, even if the provisions of 38 C.F.R. § 3.109 were applicable (and the Board has determined that they are not), the required action, i.e., the filing of a substantive appeal, was not taken concurrent with or prior to the filing of a request for extension of the time limit. In addition, the veteran has not demonstrated good cause for his delay in filing. As indicated immediately above, he has provided no basis for finding that there is good cause for extending the time period. Unfortunately, it appears the tardy filing was a mere oversight. Therefore, because the veteran has not complied with the legal requirement for perfecting an appeal, the law is dispositive of the issue and the appeal must be dismissed on that basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As noted above, there is no other submission from the veteran or his representative that could be reasonably construed to be a timely substantive appeal. Thus, a timely substantive appeal not having been filed with regard to the March, May and September 1998 rating decisions, the appeal has not been perfected, and it must be dismissed. The Board notes that, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-175 (2000) (now codified at 38 U.S.C. §§ 5100-5103A, 5106-7 (West Supp. 2001 & Supp. 2002)), that substantially modified the circumstances under which VA's duty to assist claimants applies, and how that duty is to be discharged. The new statute revised the former section 5107(a) of title 38, United States Code, to eliminate the requirement that a claimant must come forward first with evidence to well ground a claim before the Secretary of Veterans Affairs is obligated to assist the claimant in developing the facts pertinent to the claim. Judicial caselaw is inconsistent as to whether the new law is to be given retroactive effect. The Court has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"). Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The new statute specifies that the Secretary shall make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the Board is of the opinion that any assistance beyond what has already been provided is not required, because there is no reasonable possibility that it would aid in substantiating the veteran's claims. As discussed in detail above, the record reflects that the veteran was advised of the necessity to file his appeal as to each issue within one year from the date of notice of the initial rating or within 60 days after the date of the statement of the case, and he was also advised of what was required of him if he needed more time to do so. He was provided with his procedural and appellate rights in the VA Form 4107 provided in March, May and September 1998, and in the cover letter and instructions that accompanied the December 1999 and October 2001 SOCs. Nevertheless, the veteran did not submit a timely substantive appeal regarding the issues of entitlement to service connection for tinnitus and for skin disorders other than genital herpes, as due to exposure to Agent Orange, CUE as to the rating decisions of October 27, 1978, December 29, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes, and an effective date earlier than July 21, 1997, for the award of a compensable disability evaluation for genital herpes. Furthermore, in the October 2001 SOC, the RO advised the veteran that there was a question regarding the timeliness of his substantive appeal concerning the issues of service- connection for tinnitus and CUE. A copy of the SOC was sent to the veteran's designated service representative representative. The veteran submitted a written response to the SOC in January 2002. In a September 2002 letter, the veteran and his representative were advised by the Board that there was a question regarding the issue of timeliness of the substantive appeal, and that he was being afforded an opportunity to submit evidence and/or argument as to that issue. The Board advised the veteran that he had 60 days from the date of the September 13, 2002, letter, that is, by November 15, 2002, to submit additional evidence or argument to show that his substantive appeal was filed on time. The veteran's written response was received at the Board on December 16, 2002-well after the 60-day deadline. Thus, nothing has been submitted by the veteran or his representative to alter the untimeliness of the appeal. Even assuming, arguendo, that the veteran's recent responses were timely received, his argument regarding the timeliness of receipt of his substantive appeal appears to turn on his confusion regarding the receipt of an SSOC, rather than an SOC, as noted in his May 2002 statement. In December 2002, the veteran maintained that it was his understanding that there was no time limit for filing or adjudicating CUE claims and, thus, VA had no right to consider his claim on the basis of timeliness. However, as noted above, the law is clear that if a claimant has not yet perfected an appeal and VA issues an SSOC in response to evidence received within the one-year period following the mailing date of notification of the action being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the SSOC to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. To the extent that issuance of an SSOC regarding the matters may have afforded the veteran additional time to file his appeal, the Board notes that a substantive appeal was still not timely received. The Board is sympathetic with the veteran's error in not filing his substantive appeal in a timely manner. However, as the Court has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Given the RO's efforts to date, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Further, under such circumstances, where the veteran has not complied with the legal requirement for perfecting an appeal, and neither he or his representative has identified any evidence that might serve to rebut that fact, the Board finds that further development pursuant to the provisions of the VCAA is not warranted, as no reasonable possibility exists that such assistance would aid in substantiating the veteran's claim. VCAA § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified at 38 U.S.C. § 5103A (West Supp. 2001 & Supp. 2002)). See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001) ("VCAA is not applicable in all cases"). The veteran is free, at any time, to reopen his claims of entitlement to service connection for tinnitus and for skin disorders other than genital herpes, as due to exposure to Agent Orange, entitlement to an effective date earlier than July 21, 1997 for the award of a compensable disability evaluation for genital herpes and whether there was clear and unmistakable error in the rating decisions of October 27, 1978, December 28, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes, by the submission of new and material evidence to the RO. ORDER The veteran did not file a timely substantive appeal regarding the issue of service connection for skin disorders other than genital herpes as due to exposure to Agent Orange. Therefore, his appeal as to that issue is not properly before the Board for appellate review and is, accordingly, dismissed. The veteran did not file a timely substantive appeal regarding the issue of an effective date earlier than July 21, 1997, for the award of a compensable disability evaluation for genital herpes. Therefore, his appeal as to that issue is not properly before the Board for appellate review and is, accordingly, dismissed. The veteran did not file a timely substantive appeal regarding the issue service connection for tinnitus. Therefore, his appeal as to that issue is not properly before the Board for appellate review and is, accordingly, dismissed. (CONTINUED ON NEXT PAGE) The veteran did not file a timely substantive appeal regarding the issue of whether there was clear and unmistakable error in the rating decisions of October 28, 1979, December 29, 1978, April 11, 1979, and June 18, 1979, that assigned and continued a noncompensable disability evaluation for genital herpes. Therefore, his appeal as to that issue is not properly before the Board for appellate review and is, accordingly, dismissed. A. P. SIMPSON Acting Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.