Citation Nr: 0809778 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-41 767A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for status post salpingo-oophorectomy, to include lysis of adhesions with scar and abdominal pain, to include the question of whether an appeal has been timely perfected. 2. Entitlement to an initial rating in excess of 10 percent for left ulnar neuropathy with compression left elbow and wrist, to include the question of whether an appeal has been timely perfected. 3. Entitlement to an initial, compensable rating for immersion foot with periodic episodes of sores on the feet, prior to August 30, 2002, and entitlement to a rating in excess of 10 percent since that date, to include the question of whether an appeal has been timely perfected. 4. Entitlement to an initial, compensable rating for gastroesophageal reflux disease (GERD), to include the question of whether an appeal has been timely perfected. 5. Entitlement to an initial rating in excess of 20 percent for hepatitis C, to include the question of whether an appeal has been timely perfected. ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran had active military service from February 1986 to August 1993. This appeal to the Board of Veterans' Appeals (Board) arises from a July 2003 rating decision, in which the RO, inter alia, granted the veteran service connection for several disabilities, and assigned initial ratings, as follows: status post salpingo-oophorectomy, to include lysis of adhesions with scar, and abdominal pain (30 percent, effective December 14, 2001); left ulnar neuropathy with compression left elbow and wrist (10 percent, effective December 14, 2001); immersion foot with periodic episodes of sores on the feet (0 percent, effective December 14, 2001 and 10 percent, effective August 30, 2002), and GERD (0 percent, effective December 14, 2001). In October 2003, the RO granted service connection and an initial 20 percent rating for hepatitis C, effective December 14, 2001. In July 2004, the veteran filed a notice of disagreement (NOD) with the initial ratings and effective dates assigned for her service connected disabilities. Because the veteran has disagreed with the initial ratings assigned following the grants of service connection for her status post salpingo-oophorectomy, to include lysis of adhesions with scar, and abdominal pain; left ulnar neuropathy with compression left elbow and wrist; immersion foot with periodic episodes of sores on the feet; GERD; and hepatitis C, the Board has characterized the issues on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In October 2006 the Board denied entitlement to an effective date earlier than December 14, 2001 for the awards of service connection and remanded the claims for increased initial ratings for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO issued an SOC regarding the claims for increased initial ratings in December 2006, and certified the appeal to the Board in February 2007. Upon initial review in May 2007, the Board noted that the claims file did not include any document filed by the veteran with the RO that would constitute a timely-filed substantive appeal as to the matters addressed in the December 2006 SOC. Accordingly, the Board recharacterized each claim to include the jurisdictional question (as reflected on the title page), and remanded these matters to the RO via the Appeals Management Center (AMC) in Washington, DC. After considering the question of timeliness of the appeal as to each issue, in the first instance, as directed, in November 2007 , the AMC issued a supplemental SOC (SSOC) reflecting the findings that the veteran had not perfected a timely appeal with respect to any of the claims. Thereafter, the AMC afforded the veteran the appropriate opportunity to respond, and returned the matters to the Board. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the question of timeliness of the substantive appeal with respect to each claim has been accomplished. 2. In July and October 2003 rating decisions, the RO granted service connection and assigned initial ratings for status post salpingo-oophorectomy, to include lysis of adhesions with scar and abdominal pain, left ulnar neuropathy with compression left elbow and wrist; immersion foot with periodic episodes of sores on the feet, GERD, and hepatitis C; the RO informed the veteran of these decisions by letters in July and October 2003. 3. In July 2004, the RO received an NOD with the initial ratings assigned for the veteran's service-connected disabilities. The RO mailed an SOC to the veteran's address of record on December 6, 2006. 4. No document was received within the 60-day period following the issuance of the December 2006 SOC that can be construed as a timely substantive appeal with respect to any of the matters identified above, or a timely request for extension of time to file a substantive appeal as to any of those issues. CONCLUSION OF LAW As no timely substantive appeal has been filed with respect to the claims for higher initial ratings for status post salpingo-oophorectomy, to include lysis of adhesions with scar and abdominal pain, left ulnar neuropathy with compression left elbow and wrist; immersion foot with periodic episodes of sores on the feet, GERD, or hepatitis C., the Board is without jurisdiction to consider any of the claims on the merits. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In this appeal, the veteran has been notified of the reasons for the adverse determination on the jurisdictional question, and has been afforded the opportunity to present evidence and argument.. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the veteran. As will be explained below, the Board lacks jurisdiction to adjudicate the claims on appeal, on the merits. As it is the law, and not the facts, that is dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable in this appeal. See Dela Cruz v. Principi¸ 15 Vet. App. 143 (2001). See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). II. Analysis The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 2002). Pursuant to applicable law and regulation, an appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007). A substantive appeal perfects the appeal to the Board and frames the issues to be considered. Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or other correspondence containing the necessary information. The substantive appeal must also indicate what issues are being perfected. Proper completion and filing of a substantive appeal are the last actions a veteran needs to take to perfect an appeal. 38 C.F.R. § 20.202 (2007). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (2007). Where a veteran files a timely NOD but fails to timely file a substantive appeal, the appeal is untimely. See Roy v. Brown, 5 Vet. App. 554, 556 (1993). Procedurally, as noted above, the claims file indicates that, in July 2004, the veteran filed an NOD with the initial rating assigned for each of the above-noted disabilities. In October 2006, the Board remanded the claims to the RO, via the AMC, for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). In its remand, the Board emphasized that a timely substantive appeal must be filed to perfect an appeal of these matters to the Board. In December 2006, the RO issued an SOC addressing the denial of a higher initial rating for each disability at issue, and, in February 2007, certified the appeal to the Board. However, the claims file includes no document filed by the appellant with the RO that constitutes a timely-filed substantive appeal as to the issues addressed in the SOC. As such, no timely appeal as to any of these issues has been perfected. The cover letter sent with the December 2006 SOC, dated December 6, 2006, clearly notified the veteran that she had to file a formal appeal to perfect her appeal, and a VA Form 9 was enclosed for this purpose. This cover letter also specifically informed the veteran that she had to file her appeal with the RO within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying her of the action that she appealed. This letter went on to state that, if the RO did not hear from the veteran within this period, her case would be closed, but that, if she needed more time to file her appeal, she should request such time before the time limit for filing her appeal expired. However, the claims file contains no response from the veteran. There is simply no correspondence in the claims file that can be construed as a timely substantive appeal, or as a request for an extension to file a substantive appeal, with respect to any of the matters addressed in the December 2006 SOC. Pursuant to 38 C.F.R. § 20.302, the veteran had until February 6, 2007 (or, 60 days from the date of mailing of the SOC) to file a substantive appeal. However, the claims file includes no correspondence from the veteran subsequent to December 2006, let alone a document which could be accepted as a substantive appeal or a request for an extension of the 60-day time period to file a substantive appeal. Under these circumstances, the Board must conclude that the veteran has failed to timely perfect an appeal with respect to the claims for higher initial ratings for status post salpingo-oophorectomy, to include lysis of adhesions with scar and abdominal pain, left ulnar neuropathy with compression left elbow and wrist, immersion foot with periodic episodes of sores on the feet; GERD, and hepatitis C. As such, the Board is without jurisdiction to consider any of these claims, on the merits, and the appeal as to each claim must be denied on this basis ORDER The appeal as to claim for an initial rating in excess of 30 percent for status post salpingo-oophorectomy, to include lysis of adhesions with scar and abdominal pain, is denied on jurisdictional grounds. The appeal as to the claim for an initial rating in excess of 10 percent for left ulnar neuropathy with compression left elbow and wrist is denied on jurisdictional grounds. The appeal as to the claim for an initial, compensable rating for immersion foot with periodic episodes of sores on the feet, prior to August 30, 2002, and for a rating in excess of 10 percent since that date is denied on jurisdictional grounds. The appeal as to the claim for an initial, compensable rating for gastroesophageal reflux disease is denied on jurisdictional grounds. Tthe appeal of the claim for an initial rating in excess of 20 percent for hepatitis C is denied on jurisdictional grounds. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs