Citation Nr: 0810579 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 99-22 777 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUES 1. Entitlement to service connection for left knee arthritis. 2. Entitlement to a rating in excess of 20 percent for cervical spine arthritis. 3. Entitlement to rating in excess of 10 percent for lumbar spine arthritis. 4. Entitlement to a rating in excess of 10 percent for left shoulder arthritis. 5. Entitlement to a rating in excess of 10 percent for left hip arthritis. 6. Entitlement to a rating in excess of 10 percent for right hip arthritis. 7. Entitlement to a rating in excess of 10 percent for psoriasis. 8. Entitlement to a rating in excess of 10 percent for tinnitus. 9. Entitlement to a rating in excess of 10 percent for benign prostatic hypertrophy. 10. Entitlement to a rating in excess of 10 percent for residuals of a right posterior chest wall gunshot wound. 11. Entitlement to a compensable rating for residuals of a left elbow fracture. 12. Entitlement to a compensable rating for left hand and wrist arthritis. 13. Entitlement to a compensable rating for right hand and wrist arthritis. 14. Entitlement to a compensable rating for esophageal hiatal hernia with reflux. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from June 1967 to June 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Reno RO. In May 2002 the Board undertook evidentiary development under then-existing authority. In September 2003, the case was remanded for such development. A February 2006 rating decision increased the rating for the veteran's right posterior chest wall gunshot wound (gsw) residuals to 10 percent and assigned separate 10 percent ratings for the veteran's right and left hip disabilities, and separate 0 percent ratings for his bilateral wrist/hand disabilities. The matters of entitlement to service connection for a left knee disability and to increased ratings for cervical, lumbar, left shoulder, bilateral hip, and bilateral wrist and hand arthritis, residuals of a left elbow fracture, psoriasis, esophageal hiatal hernia with reflux, and residuals of a right posterior chest wall gsw are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. A July 1998 rating decision, in part, granted service connection for tinnitus and benign prostatic hypertrophy (BPH), rated 10 percent, each. 2. In February 1999, the RO received the veteran's notice of disagreement including, in part, disagreement with the ratings assigned for tinnitus and BPH. 3. A March 1999 statement of the case (SOC), in part, addressed the matters of the ratings for BPH and tinnitus; a cover letter advised the veteran that to perfect his appeal in these matters he had to submit a substantive appeal within 60 days or within the remainder, if any, of the one year period following date of notification of the rating decision appealed. 4. The veteran's substantive appeal on VA Form 9, received in November 1999, indicated he wanted to appeal all of the issues listed on the SOC; however, he did not set out any specific arguments regarding the ratings assigned for tinnitus and BPH. CONCLUSIONS OF LAW 1. As the veteran did not perfect an appeal seeking a rating in excess of 10 percent for tinnitus, the Board has no jurisdiction to address the matter. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. §§ 19.30, 20.101, 20.200, 20.202, 20.302, 20.303 (2007). 2. As the veteran did not perfect an appeal seeking a rating in excess of 10 percent for BPH, the Board has no jurisdiction to address the matter. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. §§ 19.30, 20.101, 20.200, 20.202, 20.302, 20.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), does not apply to the matters being dismissed. At issue is whether the veteran's November 1999 substantive appeal adequately encompassed these matters. The facts as to the date of receipt, and content, of the substantive appeal are not in dispute; it is not alleged that the veteran submitted another document that may be interpreted as a timely substantive appeal in these matters. The United States Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). Nonetheless, a January 2006 letter notified the veteran of why the November 1999 substantive appeal was not adequate to perfect his appeal for the ratings for tinnitus and BPH and told him how he could appeal the determination that his appeal was not perfected. As this appeal requires a strictly legal determination, there is no reasonable possibility that further notification or assistance to the veteran would aid in substantiating his claim; a remand for such development is, therefore, not warranted. 38 U.S.C.A. § 5103A. The evidentiary record in the matter of adequacy of substantive appeal timeliness is complete; the critical facts are determined by what is already of record. II. Factual Background, Legal Criteria, and Analysis An appeal consists of a timely filed NOD in writing, and after a SOC has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105; 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. It should also (emphasis added) "set out specific arguments related to errors of fact or law made by the agency of original jurisdiction" in reaching the determination 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 1 year period from the mailing of notification of the determination being appealed. 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. Questions as to timeliness or adequacy of the Substantive Appeal shall be determined by the Board. The Board may dismiss any appeal over which it determines it does not have jurisdiction. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.101. In the instant case, notification of the rating decision that granted service connection and assigned 10 percent ratings, each, for tinnitus and BPH was mailed to the veteran's latest address of record in November 1998. The veteran filed a timely (received in February 1999) NOD with the ratings assigned. An SOC addressing these matters (and others) was mailed to his most recent address of record in March 1999. The cover letter to the SOC advised the veteran that to perfect his appeal in these matters he had to file a Substantive Appeal and also advised him to carefully read the instructions that come with the Form 9 as they informed him of what he needed to do, the time limits, and other important matters. 38 C.F.R. § 19.30. He had until November 10, 1999 (the remainder of the one year period following notice of the July 1998 rating decision) to submit a timely response/Substantive Appeal. On November 9, 1999, the RO received a VA Form-9 that made no allegation of error of fact or law by the RO in their determination assigning 10 percent ratings for the BPH and tinnitus; in fact, it made no mention of those disabilities, and thus (under 38 C.F.R. § 20.202) was inadequate to perfect an appeal in those matters. A January 25, 2006, letter from the RO to the veteran notified him that a substantive appeal in these matters was not timely filed. 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.202 outline what constitutes a proper substantive appeal, and provide that the Board may dismiss any appeal where such is lacking. A January 25, 2006, letter from the RO advised the veteran that he had not timely appealed the July 1998 rating decision as to these matters and explained why the November 1999 Form 9 was lacking. He was given one year from the date of the letter to appeal the decision. Neither the veteran nor his representative responded within the prescribed time period. An October 3, 2007 written argument by the veteran's representative provides argument that the November 1999 substantive appeal was adequate; however, this argument was received after expiration of the time period provided for response in the matters of adequacy of substantive appeal in the matters addressed. Consequently, the Board finds that the veteran did not timely file an adequate substantive appeal in the matters of the ratings assigned for tinnitus and BPH, and that the Board does not have jurisdiction to address such matters. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. ORDER The appeal in the matter of the rating for tinnitus is dismissed. The appeal in the matter of the rating for BPH is dismissed. REMAND In August 2002, the veteran completed an authorization for the RO to seek treatment records from the Naval Air Station Fallon Health Clinic. In December 2002, the RO requested such records; no response was received by the time these matters were remanded in September 2003. The remand directed the RO to obtain treatment records from identified sources. In February 2006, Fallon Health Clinic advised the RO that the veteran's medical records were transferred to the National Personnel Records Center (NPRC) in St. Louis on October 24, 2002, and that they had no records. The RO accepted that response, and took no further action. As the Fallon Health Clinic indicated that they did not have any medical records on the veteran after they reported that such records were transferred to the NPRC, the search for such treatment records should not have ended with the Naval Air Station Fallon Health Clinic, but should have proceeded to the NPRC. The veteran has indicated that he was not sure of what conditions he had treated at this facility, and it would be potentially prejudicial to him to adjudicate any of the remaining claims prior to completion of the development for the treatment records. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The appellant was provided notice of what type of information and evidence was needed to substantiate his claim of service connection for a left knee disability, but was not notified of the criteria for establishing a disability rating or effective date of award for such disability. Furthermore, a recent Court decision outlined the scope of the notice necessary in increased rating claims. See Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). As these matters are being remanded anyway, the RO will have opportunity to provide such notice. It is also noteworthy that in October 2007, the veteran's representative submitted additional medical records which the RO has not reviewed. On remand the RO will have the opportunity to consider these records in the first instance. Accordingly, the case is REMANDED for the following action: 1. Regarding all of the veteran's increased rating claims, the RO should provide him the specific notice mandated by the Court in Vazquez-Flores, supra. Regarding his claim of service connection for left knee arthritis, the RO should provide him the notice mandated by Dingess/Hartman, supra., specifically including notice regarding the assignment of a disability rating and an effective date of award. He should have opportunity to respond. 2. The RO should secure from NPRC the medical records for the veteran forwarded to that facility for storage by Fallon Health Clinic in October 2002. If the records are not available at NPRC, the search for the records should proceed to any other records depository where they may have been sent. If they search proves fruitless after exhaustive search, it should be certified for the record that the records sought are irretrievably lost (and the scope of the search should be annotated in the record, and the veteran so advised). If records are located, and suggest any further development, the RO should arrange for such development. 3. The RO should then readjudicate the claims to include consideration of all evidence received since the February 2006 SSOC. If any of these claims remains denied, the RO should issue an appropriate SSOC and afford the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs