Citation Nr: 0810662 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-38 953 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a spinal vertebrae fracture. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection for a pancreas disability. 4. Entitlement to an initial evaluation in excess of 30 percent disabling for a total right knee replacement. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from May 1964 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 RO decision, which granted service connection for a total right knee replacement, assigning an evaluation of 100 percent, effective July 21, 2003, and 30 percent, effective October 1, 2004; and which denied claims of service connection for hearing loss of the left ear, a pancreas injury, and fractured spinal vertebrae. These matters also come to the Board from an October 2004 RO decision which denied entitlement to TDIU. By an April 2005 rating decision, the veteran's evaluation for his right knee disability was increased from 30 percent to a temporary evaluation of 100 percent, effective December 17, 2004, through February 28, 2006. An evaluation of 30 percent was then assigned, effective March 1, 2006. This 30 percent evaluation was confirmed in a January 2007 rating decision. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board also notes that the veteran's initial September 2002 claim reflected that the veteran may have intended to claim service connection for his pancreas injury, spinal vertebrae fracture, and left ear hearing loss disability as secondary to an already service-connected disability. In a January 2004 statement, however, he clarified his belief that he incurred these disabilities as a direct result of an inservice accident, and not a service-connected disability. Therefore, the Board will proceed to adjudicate the veteran's claims for service connection on a direct basis, as opposed to a secondary basis. The issue of entitlement to an evaluation in excess of 30 percent disabling for a total right knee replacement 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. FINDINGS OF FACT 1. The veteran is not shown by the competent medical evidence of record to have a spinal vertebrae fracture that is etiologically related to a disease, injury, or event in service. 2. The veteran is not shown by the competent medical evidence of record to have a current hearing loss disability of the left ear according to VA standards; a left ear hearing loss disability was not manifested within one year of service separation. 3. The veteran is not shown by the competent medical evidence of record to have a pancreas disability that is etiologically related to a disease, injury, or event in service. 4. In an October 2004 rating decision, the RO denied entitlement to TDIU. 5. The veteran was duly notified of the decision and his procedural and appellate rights in a November 22, 2004 letter. 6. In May 2005, the RO received the veteran's notice of disagreement (NOD) with the RO's October 2004 rating decision denying entitlement to TDIU. 7. On August 15, 2005, the RO issued the veteran a statement of the case (SOC) addressing the issue of entitlement to TDIU. 8. A substantive appeal was never received in regards to this issue. CONCLUSIONS OF LAW 1. A spinal vertebrae fracture was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 2. A left ear hearing loss disability was not incurred in or aggravated by active service, nor may sensorineural hearing loss of the left ear be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.385 (2007). 3. A pancreas disability was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). 4. The veteran did not submit a timely and adequate substantive appeal of the October 2004 rating decision denying entitlement to TDIU; and the Board therefore has no jurisdiction to consider an appeal stemming from that decision. 38 U.S.C.A. §§ 5107, 7105, 7108 (West 2002); 38 C.F.R. §§ 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) In regards to the veteran's claim of entitlement to TDIU, the timeliness of the substantive appeal is a jurisdictional matter and is governed by the interpretation of law. In such a case, the VCAA has no application. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The veteran was properly notified of the jurisdictional problem and he was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. With respect to the veteran's claims for service connection for a spinal vertebrae fracture, a left ear hearing loss disability, and a pancreas disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In regards to the veteran's claims for service connection for a pancreas disability, left ear hearing loss, and a spinal vertebrae fracture, the Board notes that the December 2002 VCAA letter sent to the veteran was inadequate. In November 2005, a VCAA letter was sent to the veteran which fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. This letter, however, did not adequately meet the timing requirement to provide full notice to the veteran before the initial denial of these claims in January 2004. See also Dingess, 19 Vet. App. at 489 (holding that the timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim). Nevertheless, the Board finds that VA cured any defect in the content of the initial December 2002 notice letter by the subsequent November 2005 notice letter, issued prior to certification of the appeal to the Board. Normally, VA can cure a failure to afford statutory notice to a claimant prior to the initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the SOC. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006). However, the Board also notes that the veteran did not submit any additional evidence relating to these claims after receiving the November 2005 notice letter. Therefore, the Board finds that the veteran has waived readjudication and no prejudice to the veteran will result in proceeding with the issuance of a final decision. Prickett, 20 Vet. App. at 377 n.2 (2006) (Failure to submit additional evidence following proper notification may constitute a waiver of readjudication). See also Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007) (Finding that requiring readjudication after the appellant had no further evidence to submit would result in an unnecessary burden on VA with no benefit flowing to the veteran.) Since the Board has concluded that the preponderance of the evidence is against the claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records, VA medical records, and private medical records are in the file. All records identified by the veteran have been obtained, to the extent possible. VA has fulfilled its duty to assist. In regards to the veteran's claims of service connection, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes examinations for hearing loss, a pancreas disability, and a spinal vertebrae fracture are not needed because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the veteran's claims since it could not provide evidence of past events. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for organic diseases of the nervous system, such as hearing loss, may additionally be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2007). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2007). "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." Lay evidence of service incurrence of injury or disease, if consistent with the circumstances, conditions, or hardships of such service, will be accepted as sufficient proof of service connection of any disease or injury alleged to have been incurred in such service in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war. 38 U.S.C.A. § 1154(b) (West 2002). Every reasonable doubt in these service connection cases will be resolved in favor of the veteran, and may only be rebutted by clear and convincing evidence. Id. As an initial matter, it is noted that there is no corroborative evidence that the veteran had combat service; as such, 38 U.S.C.A. § 1154(b) is not for application. The veteran's DD Form 214 does not reflect that he received any medals which are indicative of combat service. In addition, the veteran does not claim that his alleged disabilities are the result of combat service, but instead claims they are the result of an inservice motor scooter accident. 1. Entitlement to service connection for a spinal vertebrae fracture. The veteran contends that he has a spinal vertebrae fracture as the result of his active duty service. See veteran's statement, January 2004. Specifically, the veteran claims that he was involved in a vehicle accident, resulting in 3 spinal fractures. Id. The Board notes that the veteran was involved in a motor scooter accident in March 1966. See service medical records, June 1966. Service medical records reflect that he was diagnosed with a fracture of the right acetabulum and left pubic rami, dislocation of the right hip, and traumatic arthritis of the right hip as the result of this accident. Id. A review of the veteran's service medical records does not reflect any complaints, treatment or diagnoses of a spinal fracture or back injury during service. It is clear from the evidence of record that the veteran has been diagnosed with early (post-traumatic) degenerative changes in the thoracic spine and the lumbar spine, advanced degenerative disc disease of the L5-S1 disc space, and apparent loss of normal cervical lordosis. See Markle Chiropractic Center treatment records, March 1996; D.J.T., D.C. treatment records, January 1991. However, there is no evidence of record indicating that the veteran has suffered a spinal fracture at any point, in service or thereafter. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). As there is no evidence of record that the veteran had a spinal vertebrae fracture in service and no competent medical opinion has related any current back or spine disability, to include his degenerative disc disease, to service, the veteran's claim fails. See Hickson, supra. The Board acknowledges the veteran's assertions that he currently has back problems as the result of his active duty service. See veteran's statement, January 2004. No medical evidence, however, has been submitted to support this contention. The veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). In addition, it should be noted that the first evidence of record that the veteran had a spinal injury is from 1991, which refers to treatment in 1986, 20 years after his inservice accident. See generally D.J.T., D.C. treatment records, January 1991. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given the amount of time that passed between service and the first treatment of record of a back disability, and the fact that the claims folder completely lacks any evidence that the veteran suffered a spinal fracture or medical opinion relating any current back disability to active duty, the Board has determined that service connection is not warranted for a spinal vertebrae fracture. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a spinal vertebrae fracture must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 2. Entitlement to service connection for left ear hearing loss. The veteran has contended that he has hearing loss of his left ear as the result of his active duty service. See Claim, September 2002. Specifically, the veteran claims that he was involved in a vehicle accident, during which a rock impacted his left ear causing hearing loss and the need for reconstruction. See veteran's statement, January 2004. Upon review, the entirety of the veteran's service medical records are absent any complaints, treatment, or diagnosis of left ear hearing loss or a left ear disability. In addition, there is no indication in the medical evidence of record that the veteran had left ear hearing loss within one year of discharge from service, or that he has a current diagnosis of a left ear disability, or left ear hearing loss according to 38 C.F.R. § 3.385. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the veteran's sincere belief in his claim, the competent medical evidence of record does not show the veteran to have a current left ear disability or left ear hearing loss; thus, there may be no service connection for this claimed disability on either a presumptive or direct basis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left ear disability, to include left ear hearing loss, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for a pancreas disability. The veteran has contended that he has a pancreas disability as the result of his active duty service. See veteran's statement, January 2004. Specifically, the veteran claims that he was involved in a vehicle accident, causing his right leg to be driven into his abdominal cavity, injuring his pancreas gland. Id. Despite the veteran's claim of a pancreatic injury, the entirety of the veteran's service medical records are absent any complaints, treatment, or diagnosis of such a disability. In addition, there is no indication in the medical evidence of record that the veteran has a current diagnosis of a pancreas disability. As mentioned above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the veteran's sincere belief in his claim, the competent medical evidence of record does not show the veteran to have a current pancreas disability; thus, there may be no service connection for this claimed disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a pancreas disability, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 4. Entitlement to TDIU. The question before the Board is whether it has jurisdiction to consider the veteran's appeal for entitlement to TDIU. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a NOD and completed by a substantive appeal after a SOC is furnished to the appellant. In essence, the following sequence is required: there must be a decision by the RO, the appellant must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the appellant, and finally the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202, 20.302 (2007). To be considered timely, the substantive appeal must be filed within 60 days from the date that the RO 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, or, where applicable, within the extended time limits prescribed pursuant to a timely filed request for extension of time. 38 C.F.R. §§ 20.302(b), 20.303 (2007). Any appeal that fails to allege specific error of fact or law in the determinations being appealed may be dismissed. 38 U.S.C.A. § 3.157 (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2007). A substantive appeal can be set forth on a VA Form 9 or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to the errors of fact or law claimed to have been made. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.202 (2007). Where a SOC addresses several issues, the substantive appeal must either indicate that the appeal is being perfected as to all those issues or must specifically identify the issues appealed. The Board will construe such arguments in a liberal manner, but may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Id; see also Roy v. Brown, 5 Vet. App. 554 (1993). When VA rules require that a document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt by the VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305 (2007). Also, in computing the time limit for filing a document, the first day of the specified period will be excluded and the last day included and where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included. Id. As previously noted, in an October 2004 rating decision, the RO denied entitlement to TDIU. The veteran was duly notified of the decision, and of his procedural and appellate rights, in a November 22, 2004 letter. In response to the veteran's May 2005 NOD, the RO duly issued the veteran a SOC on August 15, 2005, addressing the aforementioned issue. The veteran was also provided with a blank VA Form 9 on which to perfect his appeal. In addition, it is notable that he was again notified of his procedural and appellate rights, and was clearly advised that in order to complete his appeal, he had to file a substantive appeal within 60 days of the Statement of the Case. VA never received a VA Form 9 Appeal in regards to this issue. In January 2008, the veteran was sent a letter inviting him to present argument or evidence addressing the jurisdictional question of whether he had timely filed an appeal, and he was given an opportunity to request a Board hearing so that he could present argument in person. The veteran submitted a statement in March 2008 reflecting his belief that he filed a timely substantive appeal for this issue. The claims folder contains no evidence of such an appeal. The Board notes that the veteran indicated on his November 2004 VA Form 9 Appeal that he wished to appeal the denial of entitlement to TDIU. However, at this time, the veteran had not submitted an NOD, nor had he been issued a SOC. Consequently, the November 2004 VA Form 9 Appeal cannot be viewed as a substantive appeal for the issue of entitlement to TDIU. Therefore, in this case, the Board finds that the veteran failed to file a timely appeal of the October 2004 rating decision. There is no indication of record, nor has the veteran contended, that he had good cause for failing to request an extension or perfect his appeal in a timely manner. See 38 C.F.R. §§ 3.109(b), 20.303 (2007); Roy, 5 Vet. App. at 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 section 20.303). Moreover, the Board has taken no action which would constitute a waiver of the substantive appeal. See Beyrle v. Brown, 9 Vet. App. 24 (1996); Roy, 5 Vet. App. 554 (1993). In summary, the Board finds that after receiving appropriate notification of his appellate rights, the veteran submitted a timely NOD with the October 2004 rating decision and the RO duly issued a SOC to him on August 15, 2005. Nonetheless, the veteran failed to submit a timely substantive appeal of the October 2004 rating decision. Thus, the Board has no jurisdiction to consider an appeal stemming from this rating decision. 38 U.S.C.A. §§ 5107, 7105, 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303 (2007). ORDER Entitlement to service connection for a spinal vertebrae fracture is denied. Entitlement to service connection for hearing loss of the left ear is denied. Entitlement to service connection for a pancreas disability is denied. The veteran did not submit a timely substantive appeal of the October 2004 RO decision, which denied the veteran's claim for entitlement to TDIU. REMAND Subsequent to the issuance of a SOC in September 2004, the RO received and associated with the veteran's claims folder a report of a relevant VA examination which had been conducted in October 2006, among other things. However, no supplemental statement of the case (SSOC) concerning the claim on appeal was issued. See 38 C.F.R. § 19.31(b)(1) (which stipulates that an SSOC will be furnished if the RO receives additional pertinent evidence after an SOC or most recent SSOC has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board). Although the additional evidence received since September 2004 was considered in a January 2007 rating decision, the veteran is still entitled to a SSOC that reflects consideration of the additional pertinent evidence after issuance of a statement of the case and before the appeal is certified to the Board and the appellate record is transferred to the Board. 38 C.F.R. § 19.31(b)(1). Accordingly, the case is REMANDED to the AMC for the following action: Provide the veteran with a SSOC as to the issue of entitlement to a higher initial evaluation for a right knee disability. If the benefits sought are not granted, the RO should give the veteran a reasonable opportunity to respond before returning the record to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs