Citation Nr: 0812969 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 97-41 981A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability rating for service-connected residuals of fracture to left maxilla and zygoma currently evaluated as 10 percent disabling effective February 13, 1997. 2. Entitlement to an increased disability rating for service-connected left eyebrow scar currently evaluated as 10 percent disabling effective August 30, 2002. 3. Entitlement to an increased disability rating for service-connected left hand scar, currently evaluated as noncompensably disabling effective February 13, 1997. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Procedural history and clarification of issues on appeal In a May 1997 rating decision, the RO granted the veteran's February 1997 claim for service connection for residuals of fracture for left zygoma, evaluating the disability as noncompensable effective February 13, 1997. The RO also denied the veteran's claim for service connection for scars located on the left eyebrow and left hand, and granted entitlement to pension. The veteran disagreed with the disability rating for residuals of fracture for left zygoma and the scars. A timely VA Form 9 was submitted in November 1997 in response to a November statement of the case (SOC). In January 1998, the veteran and his representative presented evidence and testimony at a hearing before a local hearing officer at the RO. A transcript of that hearing has been associated with the veteran's VA claims folder. In a May 1999 decision, the RO granted service connection for a left eyebrow scar, and increased the disability rating for residuals of fracture to the left zygoma to 10 percent disabling effective February 13, 1997. The RO did not separately grant a disability rating for the left eyebrow scar. In addition, the RO granted service connection for a left hand scar evaluating it as noncompensably disabling. The veteran submitted a timely notice of disagreement regarding the disability ratings. In March 2000, the RO issued a SOC for the left hand scar. No formal appeal was submitted within the required 60 day period; however the RO issued as subsequent SOC in July 2001 regarding the left eyebrow scar and left hand scar. The July 2001 SOC states that it was continuing the 10 percent disability rating for the left eyebrow scar and the noncompensable rating for the left hand scar. The veteran submitted a VA Form 9 in August 2001 which addressed only the left hand scar. In February 2004, the veteran received a letter from the RO explaining that the March 2000 SOC was final because the veteran failed to submit a substantive appeal within 60 days of its issuance, and further stated that the July 2001 SOC was issued in error. The veteran submitted a NOD to the February 2004 letter. The RO issued an April 2004 SOC which determined that the August 2001 Form 9 was untimely submitted. In an October 2004 rating decision, the RO denied the veteran's claim for an increased disability rating for his service-connected left hand scar. The veteran submitted a statement disagreeing with the decision in December 2004. No SOC has been subsequently issued pertaining to the left hand scar increased disability rating issue. In an August 2007 supplemental statement of the case (SSOC), the RO continued the 10 percent disability rating for residuals of a fracture of the left maxilla and zygoma, and granted a separate 10 percent disability rating for the veteran's service-connected left eyebrow scar. Finally, the Board notes that the veteran consistently submitted VA Form 9 substantive appeals upon which he indicated his desire to have a hearing before a Veterans Law Judge (VLJ) in Washington, D.C. The record indicates such a hearing was scheduled for March 12, 2008, at 9 a.m., but there is no indication that the veteran appeared for his hearing. Neither is there anything in the record indicating the veteran sought to postpone the hearing date. Thus, in accordance with the notice provided him in a letter dated January 11, 2008, the Board will proceed with adjudication of his claims as though he withdrew his request for a hearing before a VLJ. The Board finds that the issues of entitlement to an increased disability rating for residuals of a fracture of the left maxilla and zygoma, and for a left eyebrow scar are in appellate status. The Board further finds that it has jurisdiction to adjudicate the issue of entitlement to an increased disability rating for a left hand scar; the RO's July 2001 SOC waived any failure to timely file a substantive appeal, and in any case, the veteran submitted a timely NOD regarding the issue. See Beryle v. Brown, 9 Vet. App. 24, 28 (1996) (holding that, where Board proceeded to review claims on appeal where no substantive appeal was filed, Board implicitly waived the filing requirement of the substantive appeal as to those claims); see also Rowell v. Principl, 4 Vet. App. 9, 17 (holding that lack of timely filed substantive appeal does not deprive Board of jurisdiction over appeal initiated by a timely notice of disagreement). For those reasons, the Board will address the issues as stated under the heading of Issues above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND For reasons explained immediately below, the Board believes that this case must be remanded for additional evidentiary development The Board observes that in May 1999, an attorney representing the veteran sent a letter seeking records in support of the veteran's claim for Social Security Administration (SSA) disability benefits. In Murincsak v. Derwinski, 2. Vet. App. 363 (1992), the United States Court of Appeals for Veterans Claims held that VA's statutory duty to assist includes obtaining records from SSA and giving appropriate consideration and weight to such evidence in determining whether to award or deny VA disability compensation benefits. Therefore, the AOJ must obtain the records from SSA pertaining to the veteran's service-connected conditions. The Board notes that the most recent VA medical examination of the veteran's left hand scar is dated February 1998, more than 10 years ago. The AOJ should arrange for an appropriate examination of the left hand scar. During the course of the veteran's initial claim, the rationale for evaluating the left maxilla and zygoma has evolved from a diagnostic code involving the underlying fracture and open reduction to one that involves compensation for the scar above the left ear. It is unclear whether the scar is a separate disability or considered to be a residual of the fracture. Accordingly, the case is REMANDED for the following action: 1. VBA should contact SSA for the purpose of obtaining any records from that agency that pertain to the veteran's claim for SSA disability benefits, including any medical records. Any records so obtained should be associated with the veteran's VA claims folder. 2. Once SSA records are obtained and associated with the veteran's claims folder, the veteran should be accorded a medical examination for his left hand scar. The report of the examination should be associated with the veteran's VA claims folder. 3. Following the completion of the foregoing development, and after undertaking any additional developmental action which it deems to be necessary, VBA should then readjudicate the veteran's claims of entitlement to service connection for residuals of fracture of the left maxilla and zygoma, to include any scars, and the service-connected left hand scar. If the benefits sought on appeal remain denied, VBA should provide the veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). _________________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).