Citation Nr: 1004641 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 07-17 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the Veteran filed a timely Substantive Appeal to a June 2004 rating decision that denied her claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. 2. Entitlement to service connection for a hysterectomy. 3. Entitlement to service connection for anemia. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for a right knee disorder. 6. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia A. Talpins, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from two rating determinations dated in June 2004 and February 2006 of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Atlanta, Georgia. In the June 2004 rating decision, the RO denied service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. In the February 2006 rating determination, the RO found that the Veteran failed to submit a timely Substantive Appeal in relationship to the June 2004 rating decision. The Veteran, who had active service from September 1984 to July 1987 and February 1991 to April 1991, perfected an appeal of the February 2006 rating determination to the BVA. Thereafter, the RO referred the case to the Board for appellate review. The Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge in December 2009 regarding not only the question of timeliness of her Substantive Appeal, but also as to the merits of her original service connection claims. December 2009 BVA hearing transcript. At that time, she submitted additional evidence in support of her service connection claims, with a waiver of initial RO review. See December 2009 statement in support of claim. After reviewing all of the evidence of record, the Board finds (for reasons discussed in more detail below) that reasonable doubt has been raised in regards to the issue of whether the Veteran filed a timely Substantive Appeal to the June 2004 rating decision referenced above; and therefore, the Veteran's Substantive Appeal is adequate and timely. However, the record reveals that additional development of the Veteran's service connection claims is necessary. As such, the Veteran's claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder are hereby REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. The RO will contact the Veteran and inform her that further action is required on her part. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the timeliness issue of the Veteran's Substantive Appeal has been accomplished. 2. The RO, in a June 2004 rating decision, denied the Veteran's claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. 3. The Veteran filed Notices of Disagreement ("NOD"), received by the RO in August 2004 and September 2004, indicating her desire to appeal the June 2004 rating decision. 4. The RO did not issue a Statement of the Case ("SOC") until March 2005; a March 22, 2005 notification letter informed the Veteran that her Substantive Appeal must have been received within 60 days of the date of the SOC notice letter, or within the remainder of the one-year period of the letter notifying her of the rating decision being appealed. 5. The Veteran's unsigned and undated Substantive Appeal was received at the RO on May 19, 2005. 6. The RO returned the Veteran's unsigned Substantive Appeal on June 14, 2005 for the Veteran's signature. In doing so, the RO instructed the Veteran to return the Substantive Appeal within 60 days. 7. The Veteran testified during a December 2009 BVA hearing that she signed, dated and returned the Substantive Appeal to the RO in June 2005. 8. The Veteran's signed Substantive Appeal, dated June 17, 2005, was date-stamped as received at the RO on February 7, 2006. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the Board finds that the Veteran timely and adequately appealed the June 2004 rating decision denying her claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. 38 U.S.C.A. §§ 7105(d)(3), 7108 (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.305 (2009); Percy v. Shinseki, 23 Vet. App. 37 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. The Veterans Claims Assistance Act As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). For the record, the Board observes that the VCAA does not generally apply to timeliness issues related to the submission of a Notices of Disagreement and Substantive Appeals, to the extent that the United States Court of Appeals for Veterans Claims (the "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). Regardless, since this decision represents a complete grant of the Veteran's appeal to the extent that the Board finds that Veteran did submit an adequate and timely Substantive Appeal to the June 2004 rating decision that denied her service connection claims, the Veteran cannot be prejudiced by any deficiency, if any, in the notice and assistance requirements of the VCAA. As such, the Board will dispense with any further discussion of the VCAA and will proceed to the merits of the timeliness issue in this case. B. Timeliness of Substantive Appeal The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2009). Appellate review is initiated by the filing of a Notice of Disagreement ("NOD"), and is completed by the filing of a Substantive Appeal after a Statement of the Case ("SOC") has been furnished. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201. In order to perfect an appeal to the Board, a claimant must file a Substantive Appeal, which consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. In terms of time frames, the Board observes that the NOD must be filed within one year from the date that the RO mails notice of the determination. The date of mailing of the notification is presumed to be the same as the date of the letter. See 38 C.F.R. § 20.302(a). The Substantive Appeal is supposed to be filed within sixty days from the date that the RO 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 period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the statement of the case for purposes of determining whether an appeal has been timely filed. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). The law requires that a 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, or determinations, being appealed. To the extent possible, the argument should be related to specific items in the SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board must dismiss any appeal over which it lacks jurisdiction. Jurisdiction over an issue does not vest in the Board until an appeal to the Board has been properly perfected by the timely filing of an adequate Substantive Appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. A decision as to the adequacy of a Substantive Appeal will be made by the Board. See 38 U.S.C.A. § 7108; 38 C.F.R. § 20.101(d). As set forth in the Introduction above, the initial matter that must be addressed by the Board in this case is the timeliness of a Substantive Appeal submitted by the Veteran in relationship to a June 2004 rating decision that denied certain service connection claims. In terms of history, a review of the record reveals that the Veteran submitted an application for compensation in July 2003 that included, among other things, claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. See July 2003 application for compensation. The RO denied these claims in the June 2004 rating decision referenced above. Thereafter, the Veteran filed an NOD to the denial of her claims that was received by the RO in August 2004. However, the RO notified the Veteran in late-August 2004 that the statement she submitted as an NOD was insufficient as it did not specifically identify the issues in the June 2004 rating decision with which she disagreed. August 2004 letter from the RO to the Veteran. In doing so, the RO informed the Veteran that if she still wished to appeal the June 2004 rating decision, she should submit a valid NOD within one year from the date the RO notified her of the June 2004 rating decision. Id. In response to the RO's letter, the Veteran submitted a second Notice of Disagreement indicating her desire to appeal the denial of her claims of entitlement to service connection for (1) residuals of a hysterectomy procedure, (2) anemia, (3) sinus problems, (4) patellar femoral pain and (5) depression/anxiety/ stress that was received by the RO in September 2004. See September 2004 NOD. In March 2005, the RO issued the Veteran an SOC. The notification letter attached to the SOC, dated March 22, 2005, informed the Veteran that her Substantive Appeal must have been received within 60 days of the date of the SOC notice letter, or within the remainder of the one-year period of the letter notifying her of the rating decision being appealed. See March 2005 letter from the RO to the Veteran. The Veteran then submitted a Substantive Appeal that was received at the RO on May 19, 2005. However, the Substantive Appeal was not signed and undated. As such, the RO returned the Veteran's unsigned Substantive Appeal on June 14, 2005 for the Veteran's signature. In doing so, the RO instructed the Veteran to return the Substantive Appeal within 60 days. See June 2005 letter from the RO to the Veteran. A review of the claims file reveals that the Veteran returned the Substantive Appeal to the RO. This document, signed by the Veteran and dated June 17, 2005, was date-stamped as received at the RO on February 7, 2006. See VA Form 9 dated June 2005, with date-stamps of May 19, 2005 and February 7, 2006. In light of the fact that the Veteran's Substantive Appeal was date-stamped by VA as being received in February 2006, the RO found the Substantive Appeal to be untimely and closed the Veteran's appeal. February 2006 rating determination. The Veteran disagreed with the closing of her appeal; and has consistently asserted that she signed, dated and returned the second Substantive Appeal form to the RO in June 2005. February 2006 Notice of Disagreement; December 2009 BVA hearing transcript. After reviewing the Veteran's statements and testimony in conjunction with the other evidence contained in the claims file, the Board finds that the Veteran's assertions pertaining to the submission of her second Substantive Appeal to be credible; and therefore concludes that reasonable doubt requires the Substantive Appeal to be found both adequate and timely. In making these determinations, the Board finds guidance in the recent Court decision of Percy v. Shinseki, 23 Vet. App. 37 (2009). In Percy v. Shinseki, the Court addressed the question of whether the requirement that a claimant file a timely Substantive Appeal under 38 U.S.C.A. § 7105(d)(3) is a jurisdictional predicate to the Board's adjudication of a matter. Id., p. 38. In analyzing this question, the Court distinguished the issues of a timely Notice of Disagreement versus a timely Substantive Appeal. In doing so, the Court confirmed that the absence of a timely NOD is a jurisdictional bar to consideration of a veteran's claim; however, the Court also confirmed that an untimely Substantive Appeal is NOT a jurisdictional bar to consideration of a veteran's claim, and that the RO and the Board MAY accept a Substantive Appeal even if it is not timely. Id., pgs. 42-46. Further, the Court cited 38 U.S.C.A. § 7105(d)(3) for the proposition that "VA may close an appeal for failure to file a timely Substantive Appeal, in which case the Board may decline to exercise jurisdiction over the appeal as a prudential matter, even though section 7105(d)(3) is not properly termed jurisdictional." Id., p. 46 (emphasis in original), citing Eberhart v. United States, 546 U.S. 12 (2005)(parallel citations omitted). In making the above-referenced findings, the Board acknowledges that the factual scenario in Percy v. Shinseki is distinguishable from the case at hand since the Court in Percy specifically found that, because the RO had never addressed the issue of timeliness in the SOC, and because the veteran was not informed that there was a timeliness issue until his claim was before the Board, the RO had essentially waived any objections it might have offered to the timeliness, and had implicitly accepted the veteran's appeal. Id., pgs. 46-48. In the present case on appeal, the RO rejected the Veteran's second Substantive Appeal as evidenced by the issuance of the February 2006 rating determination. However, regardless of the RO's actions in closing the Veteran's appeal, the Board finds that the circumstances of this case warrant the acceptance of a belated Substantive Appeal in light of the fact that the Veteran has consistently and clearly expressed her intention to timely appeal the RO's June 2004 rating decision. See, e.g., the Veteran's August 2004 NOD; September 2004 NOD; June 2005 letter from the RO to the Veteran. In this regard, the Board finds it particularly notable that the Veteran submitted a timely Substantive Appeal in May 2005 that was sufficient to perfect her claim other than the fact that it was not signed. VA Form 9 dated June 2005, with date-stamps of May 19, 2005 and February 7, 2006. Additionally, the Veteran has credibly testified that she filed the second Substantive Appeal as soon as she received the June 2005 letter from the RO informing her of the need to do so. December 2009 BVA hearing transcript. The fact that the Veteran diligently and timely submitted a second NOD after being notified of the RO of the need to do so lends credibility to the Veteran's assertions of diligence in relationship to the submission of her second Substantive Appeal. See August 2004 letter from the RO to the Veteran; September 2004 NOD; see also Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). Moreover, the Board also assigns value to arguments made by the Veteran's representative wherein she noted that she would have signed the VA Form 9 on behalf of the Veteran had she been provided a copy of the same. 38 C.F.R. § 20.301(a) (2009). In light of the foregoing, the Board finds that the Veteran's Substantive Appeal was timely filed, thereby perfecting her appeal of the claims for service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. As such, the above-referenced service connection claims must be adjudicated on a de novo basis. However, since the RO has not had the opportunity to adjudicate these claims on the merits in light of all evidence of record, and additional development of the claims is necessary, this appeal must be remanded for further development. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER An appeal has been perfected with respect to the Veteran's claims of entitlement to service connection for a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. The appeal is granted to this extent only. REMAND As mentioned above, the Veteran seeks service connection for residuals of a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. See July 2003 application for compensation; Veteran's statements; December 2009 BVA hearing transcript. In doing so, the Veteran essentially argues that she experienced symptomatology during her periods of service that she believes is associated with the above-referenced disorders. Id. A review of the Veteran's service records corroborates the Veteran's claims to the extent that they reveal the Veteran received medical treatment in relationship to menstrual problems, anemia, hayfever and sinus problems, right knee problems, anxiety and depression. See, e.g., service treatment records dated in December 1984, January 1985, February 1985, April 1985, May 1985, August 1985 and September 1985. Post-service medical records appear to indicate that the Veteran has continued to be diagnosed with anemia, sinus problems, right knee pain and depression since service. See VA medical records; private medical records. In view of the foregoing, the Board finds that the Veteran should be afforded a VA examination in relationship to her claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following actions: 1. The RO should ensure that all notification and development action required by the VCAA and implementing VA regulations is completed in regards to the Veteran's service connection claims, including the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A and 5107. See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 2. The RO should afford the Veteran a VA examination with an appropriately qualified examiner for the purpose of obtaining a medical opinion as to whether it is at least as likely as not that the Veteran has or experiences (a) residuals of a hysterectomy, (b) anemia, (c) sinusitis, (d) a right knee disorder and/or (e) an acquired psychiatric disorder that is etiologically related to her periods of service. The appellant's claims folder must be made available to the examiner for review in conjunction with the examination. A clear rationale and basis for all opinions expressed will be very helpful to the Board. If no opinion can be rendered without resorting to pure speculation, the examiner should explain why this is not possible. 3. After undertaking any additional development deemed appropriate, the RO should readjudicate the Veteran's claims of entitlement to service connection for (residuals of) a hysterectomy, anemia, sinusitis, a right knee disorder and an acquired psychiatric disorder. If the benefits sought by the Veteran are not granted, the Veteran and her 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 she desires to have considered in connection with her current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran unless she is notified. These claims 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. 2009). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs