Citation Nr: 1100884 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 05-35 840A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether the claim for an increased rating greater than 40 percent for urinary incontinence is properly on appeal. 2. Whether the claim for an increased rating greater than 10 percent for rectal incontinence is properly on appeal. 3. Entitlement to an initial rating greater than 60 percent for chronic low back pain with degenerative disc disease and a history of arachnoiditis 4. Entitlement to an effective date earlier than January 29, 2007 for the grant of entitlement to special monthly compensation based on aid and attendance (A&A). REPRESENTATION Appellant represented by: Paralyzed Veterans of America ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1975 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2004, March 2007 and January 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issues of entitlement to an increased rating for chronic low back pain and entitlement to an earlier effective date for the grant of special monthly compensation for A&A are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran was granted service connection for urinary and rectal incontinence, assigned initial ratings and notified of the rating decision on March 22, 2007. 2. The RO received the Notice of Disagreement as to these issues on April 18, 2007 and a Statement of the Case (SOC) was prepared on January 30, 2008. The Statement of the Case was sent to the Veteran on January 31, 2008. 3. After January 31, 2008, the RO did not receive any correspondence from the Veteran or the Veteran's representative with regard to these issues until April 13, 2010. 4. A timely request for an extension of the time limit for filing a substantive appeal is not of record. CONCLUSION OF LAW The Veteran has not submitted a timely Substantive Appeal with regard to the initial ratings of urinary and rectal incontinence awarded in a March 2007 rating decision, nor has he submitted a timely request for extension of the time limit for filing the substantive appeal. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.109, 20.202, 20.302, 20.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the decision below, the Board has determined the appellant did not submit a timely substantive appeal with regard to the issues seeking increased ratings for urinary and rectal incontinence. As such, the Board is declining jurisdiction to consider the merits of these issues. See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.101. Thus, with regard to this aspect of the Veteran's appeal, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 5103A(a); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence). In this case, the Board sent the Veteran a letter in September 2010 notifying him of the jurisdictional problem, and affording him 60 days to respond. The letter also informed him that he could request a hearing with respect to the jurisdictional question. The Veteran did not respond. The Board finds he was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. Under VA regulations, an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 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 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 comes later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b)(1). This may be extended for a reasonable period on request for good cause shown. 38 C.F.R. § 20.303. An RO may close an appeal without notice to an appellant for failure to respond to an SOC within the period allowed. See 38 C.F.R. § 19.32. The Board notes that the Veteran has filed multiple claims for benefits. In an effort to clarify the complicated claims file, the Board will attempt to explain the procedural aspects of this case. In June 1995 the Veteran filed a claim seeking entitlement to service connection for a low back disorder claimed as due to a February 1995 surgical procedure at a VA medical center. After significant development, the Veteran's claim was ultimately granted in a March 2004 rating decision. The Veteran appealed the initial rating claiming, among other things, urinary and rectal incontinence as manifestations of his low back disorder. The Veteran further claimed entitlement to special monthly compensation indicating he required constant aid and attendance from his wife due to his low back disorder and the manifestations of his back disorder. The Veteran was awarded service connection for urinary and rectal incontinence in a March 2007 rating decision. The Veteran disagreed with the initial ratings in an April 2007 notice of disagreement. Thereafter, the Veteran was awarded an increased rating for his spine, a total disability rating based on individual unemployability and special monthly compensation due to A&A in a January 2008 rating decision. The January 2008 rating decision also granted the Veteran an increased rating for his urinary incontinence. Special monthly compensation was awarded effective January 29, 2007, the date the Veteran's combined service- connected disability ratings satisfied A&A criteria. The RO then issued a Statement of the Case (SOC) in January 2008 addressing the initial ratings for urinary and rectal incontinence as well as the effective date for the A&A award. A notification letter was sent to the Veteran on January 31, 2008, along with a copy of the SOC. The letter included notice that the VA Form 9, Appeal to the Board of Veteran's Appeals, must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying you of the rating decision. The letter included the provision that if the substantive appeal was not filed within 60 days, the Veteran's case would be closed. The letter also included that a request for an extension should be made prior to the expiration if the time limit. The Veteran specifically appealed only the earlier effective date issue in a February 11, 2008 statement. To date, the Veteran has never filed a VA Form 9 with respect to the rectal and urinary incontinence issues. Indeed, the Veteran submitted additional evidence and statements with regard to the earlier effective date issue, but did not mention the increased rating claims at all until his representative submitted a statement in April 2010, nearly two years after the SOC. Even if the VA were to accept the April 2010 correspondence as a substantive appeal, this document was received by the RO well beyond the 60 day time limit after the issuance of the January 2008 SOC. The issues were certified for appeal to the Board. Upon discovering the jurisdictional problem, the Board sent the Veteran a letter dated September 8, 2010 affording the Veteran an opportunity to respond as to why he may think he has a timely appeal as to these issues. The Board further explained that the Veteran could also request a hearing with regard to the timeliness of his appeal. The Veteran had 60 days to respond. To date, the Board has not received a response to this letter. The Board acknowledges the recent decision of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37 (2009) which held that the 60- day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. However, unlike the claimant in Percy, the VA has not treated these claims as if they were timely. On the contrary, as indicated above, after receiving the claim and discovering the lack of a VA Form 9 or other timely correspondence that could be deemed a substantive appeal as to these issues, the Board notified the Veteran of the defect and that consideration of this question could result in dismissal. The Veteran was afforded 60 days to respond and failed to do so. The Board further notes the RO did not issue a Supplemental Statement of the Case (SSOC) or otherwise readjudicate these claims since the January 2008 SOC. Accordingly, the Board concludes that this case may be distinguished from Percy, and that dismissal of the claims here is warranted. The Board has also considered whether the appellant filed a timely request for an extension of the time limit to file a substantive appeal. The Board also notes that VA regulations specifically state that a request for an extension of the 60-day period for filing a substantive appeal must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. After reviewing the claims file, however, the Board finds no indication that the Veteran ever requested an extension to file a substantive appeal as to these issues. On the contrary, the Veteran promptly responded to the January 2008 SOC in a February 2008 statement specifically appealing only the earlier effective date. In short, the Board concludes the Veteran never filed a substantive appeal as to the urinary and rectal incontinence issues. Although correspondence from the Veteran or his representative can be construed as a substantive appeal in lieu of a VA form 9, no such correspondence was received by the RO until April 2010, nearly two years after the January 2008 SOC. As such, the claims folder simply does not contain a timely filed substantive appeal. Accordingly, the Board does not have jurisdiction to consider these claims, and the appeal is dismissed. ORDER The claim entitlement to an increased rating greater than 40 percent for urinary incontinence is not properly on appeal and, therefore, the appeal is dismissed. The claim entitlement to an increased rating greater than 10 percent for rectal incontinence is not properly on appeal and, therefore, the appeal is dismissed. REMAND In contrast, the Board finds the appeals seeking an initial rating greater than 60 percent for a low back disorder and seeking an earlier effective date prior to January 29, 2007 for the award of special monthly compensation for A&A to properly be within the Board's jurisdiction here. The low back disorder claim was last adjudicated in a Supplemental Statement of the Case (SSOC) in May 2007. The effective date issue was last adjudicated in a Statement of the Case (SOC) dated January 2008. Thereafter, relevant, non- duplicative medical evidence was submitted, to include multiple private opinions by Dr. Bash. Most recently, the Veteran's representative submitted a private medical report from Dr. Bash dated April 2010 and specifically indicated that the Veteran does "not waive[] his right to have the evidence reviewed in the first instance by the local VARO. BVA should remand the appeal for consideration of new evidence by VARO." Accordingly, these claims must be remanded for agency of original jurisdiction (AOJ) consideration of the newly submitted evidence. The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board notes that the Veteran has never been sent a VCAA letter specifically informing the Veteran of what is needed to substantiate his earlier effective date claim. Corrective action is required. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination for his spine in April 2007, over three years ago. Thereafter, the Veteran submitted medical reports from his private physician, Dr. Bash, most recently dated April 2010, indicating the Veteran is wheelchair reliant for mobility due to his low back disorder. Since it is necessary to remand this claim for other reasons, the RO should also take this opportunity to afford the Veteran a new VA spine examination to ensure the claims folder contains the most current state of the Veteran's disability. Id. The Board also finds noteworthy that the Veteran's low back claim stems from a 1995 claim. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating disabilities of the lumbar spine. Effective September 23, 2002, and September 26, 2003, VA revised the criteria for evaluating intervertebral disc syndrome and general diseases and injuries of the spine. 68 Fed. Reg. 54,345- 49 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). Effective from September 26, 2003, disabilities of the thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2006). Accordingly, after all development is complete, the RO should readjudicate the claim specifically considering both the old and new criteria. Accordingly, the case is REMANDED for the following action: 1. The RO must ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent court decisions, and any other applicable legal precedent concerning the claim for an effective date earlier than January 29, 2007 for the grant of special monthly compensation based on the need for aid and attendance (A&A). 2. After the above is complete, schedule the Veteran for an orthopedic examination for his low back condition, to ascertain any and all current disabilities he has in connection with his service-connected low back condition and the current level of severity of each condition. The examiner must conduct all necessary tests to ascertain the orthopedic manifestations, if any, of the Veteran's low back condition. The examiner must be instructed to review the entire claims folder, to include prior VA examinations and a copy of this decision, prior to rendering an opinion. The examiner is further requested to specifically opine whether the Veteran has ankylosis of the spine. The examiner should also provide a medical opinion with regard to what overall effect, if any, the Veteran's service-connected back condition has on his ability to obtain and retain employment; that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. The examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 3. Thereafter, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, which includes notice and consideration of the old and new spine rating criteria, and they should be given an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to complete the record, and to ensure due process. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claims must be afforded expeditious treatment. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs