Citation Nr: 0812953 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-09 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether the veteran filed a timely Substantive Appeal on the issue of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails, and back, which was denied in a June 2005 rating decision. 2. Whether the veteran filed a timely Substantive Appeal on the issue of entitlement to a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes, which was denied in a June 2005 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and his daughter ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from February 1951 to February 1953. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2006 determination of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). The RO determined the veteran had not submitted a timely Substantive Appeal following the issuance of the June 2005 rating decision, which denied ratings in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back, and in excess of 10 percent for bilateral pes planus with mild degenerative changes. FINDINGS OF FACT 1. The RO denied ratings in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails, and back, and in excess of 10 percent for bilateral pes planus with mild degenerative changes, in a June 2005 rating decision, and the veteran was informed of the decision in June 2005. 2. The veteran's Notice of Disagreement (NOD) with the epidermophytosis rating was received by the RO in February 2006. 3. The veteran's NOD with the pes planus rating was received by the RO in March 2006. 4. A Statement of the Case pertaining to the epidermophytosis rating was mailed to the veteran on May 5, 2006. 5. The veteran timely filed an appeal for the June 2005 rating decision on the issue of the epidermophytosis rating by submitting a VA Form 21-4138, which was received by the RO on May 26, 2006. 6. A Statement of the Case pertaining to the pes planus rating was mailed to the veteran on June 27, 2006. 7. The appellant's Substantive Appeal (VA Form 9) with respect to the pes planus rating was received on October 4, 2006, over 60 days after issuance of the June 2006 Statement of the Case and over one year from the June 2005 rating decision. CONCLUSIONS OF LAW 1. The veteran filed a timely Substantive Appeal for the June 2005 rating decision as to the issue of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2007). 2. The veteran did not file a timely Substantive Appeal for the June 2005 rating decision as to the issue of entitlement to a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. With respect to the issue of whether the veteran filed a timely Substantive Appeal on the issue of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails, and back, which was denied in a June 2005 rating decision, the Board finds that given the fully favorable decision, discussed below, any deficiency with regard to the timing or content of the VCAA notice as to the issue of the timeliness of his substantive appeal is moot or represents harmless error. As to the issue of whether the veteran filed a timely Substantive Appeal on the issue of entitlement to a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes, which was denied in a June 2005 rating decision, the Board notes that as the law and not the facts are dispositive in this case, there is no reasonable possibility that further assistance to the veteran would substantiate his claim, and the provisions of the VCAA do not apply. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). II. Factual Background, Legal Criteria, and Analysis A rating decision dated in June 2005 denied ratings in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails, and back; and in excess of 10 percent for bilateral pes planus with mild degenerative changes. The veteran was informed of the decision by a letter dated on June 14, 2005. The veteran's NOD with the epidermophytosis rating was received by the RO in February 2006. His NOD with the pes planus rating was received by the RO in March 2006. The RO mailed a Statement of the Case pertaining to the epidermophytosis rating to the veteran on May 5, 2006. The veteran submitted a signed VA Form 21-4138, which was received by the RO on May 26, 2006. This form addressed the ratings issues that were denied in the June 2005 rating decision, and provided a basis for concluding that the veteran wished to continue his appeal on those issue addressed in the May 2005 Statement of the Case. The RO later mailed to the veteran a Statement of the Case pertaining to the pes planus rating on June 27, 2006. The cover letter to the Statement of the Case advised the veteran of the requirement of filing a Substantive Appeal and referenced an enclosed VA Form 9 which informed him of the time limit in which to submit the appeal, as well as instructions for requesting additional time. The veteran's Substantive Appeal (VA Form 9) with respect to the pes planus rating was received on October 4, 2006. 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 Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that an appeal was 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 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 Statement of the Case 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 period ends later. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). The date of mailing the letter of notification of the determination will be presumed to be same as the date of that letter date of notice of the determination of the agency of original jurisdiction. 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) (2007). The Board finds that the VA Form 21-4138, received by the RO on May 26, 2006, may be reasonably construed as a Substantive Appeal for the denial of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back. It was received subsequent to the issuance of the May 5, 2006, Statement of the Case on the issue. It is timely, as it was received by the RO within the one year period from the date of mailing of the June 2005 rating decision, which was mailed to the veteran on June 14, 2005, and it indicated his desire to continue with his appeal. 38 C.F.R. §§ 20.300, 20.302 (2007). The Board is cognizant that the VA Form 21-4138 did not set out any specific allegations of error of fact or law on the part of the RO. However, in Gomez v. Principi, 17 Vet. App. 369 (2003), the Court addressed a similar situation, in which there was a timely filed appeal form but no allegation of error. In Gomez, the Court pointed out that the law and regulations provided that a claimant "should" set out specific arguments relating to errors of fact or law made by the RO in reaching the determination, or determinations, being appealed. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.202. The Court then went on to conclude that the statute was expressly permissive, i.e., "may dismiss." 38 U.S.C.A. § 7105(d)(5). The Board finds this case closely parallels the Gomez case and for the reasons asserted in that case, the Board finds that although the veteran should set out specific errors of fact or law, the fact that he did not do so for the claim of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back denied in the June 2005 rating decision does not deprive the Board of jurisdiction. As the Court noted in Gomez, a case involving the liberal construction of what constitutes a valid Substantive Appeal, to construe otherwise would raise serious fair process issues, especially in light of the nonadversarial and pro-claimant VA claims adjudication system. Thus, having undertaken a liberal reading of the VA Form 21-4138 received in May 2006, and having resolved doubt in favor of the veteran, the Board concludes that this document adequately meets the requirements set forth in 38 C.F.R. § 20.202 (2007) as to the issue of a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back denied in the June 2005 rating decision. Turning to the issue of the timeliness of the Substantive Appeal with respect to the denial of a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes in the June 2005 rating decision, the Board finds that the May 2006 VA Form 21-4138 may not serve as a Substantive Appeal with respect to that issue since it was received by the RO prior to the issuance of the June 27, 2006, Statement of the Case that addressed that issue. The only communication received from the veteran following the June 27, 2006 Statement of the Case was the VA Form 9, Substantive Appeal, which was received at the RO on October 4, 2006, which is beyond the time requirement. There is no evidence or contention that the veteran filed his VA Form 9 or any other correspondence, indicating his intent to perfect his appeal with the VA, subsequent to the issuance of the Statement of the Case on June 27, 2006, and earlier than October 4, 2006. And the veteran did not request an extension of time for filing the substantive appeal prior to the expiration of the time limit, which was explained in the Statement of the Case. 38 C.F.R. § 20.303. For these reasons, the veteran did not timely file a Substantive Appeal with regard to the June 2005 rating decision as to the issue of entitlement to a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes, and the Board lacks jurisdiction to review on appeal the merits of that claim. ORDER A timely Substantive Appeal was filed for the June 2005 rating decision as to the issue of entitlement to a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails and back. A timely Substantive Appeal was not filed for the June 2005 rating decision as to the issue of entitlement to a rating in excess of 10 percent for bilateral pes planus with mild degenerative changes. REMAND In light of the determination above that the veteran filed a timely Substantive Appeal for the June 2005 rating decision denying a rating in excess of 30 percent for epidermophytosis of the feet, fingers, fingernails, and back, the Board finds that the veteran has not been afforded an opportunity to present additional evidence and/or argument in furtherance of his claim. For example, when the veteran appeared for his hearing before the Board at the RO he was apparently under the impression that the purposes of the hearing was to discuss the evaluations assigned for his service connected disabilities, which were not then before the Board. Therefore, the claim must be returned to the RO to ensure due process. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. The RO/AMC should ensure that the veteran has been provided notice consistent with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and the Court's recent guidance in the cases of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in connection with his claim for an increased evaluation for epidermophytosis disability. 2. The RO/AMC should contact the veteran and inquire as to whether he has received any treatment for his epidermophytosis disability since June 2006. If the veteran identifies any such treatment, the RO/AMC should obtain and associate those records with the claims file. 3. The RO/AMC should contact the veteran and inquire as to whether he desires a BVA hearing with respect to his claim for an increased evaluation for his epidermophytosis disability. If the veteran's desires such a hearing, he should be scheduled for a hearing before the BVA at the earliest opportunity. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs