Citation Nr: 1300434	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  09-27 892A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to a compensable disability rating for service-connected headaches.

2.  Whether a timely appeal (VA Form 9 or equivalent) was timely filed in response to a September 2008 statement of the case denying a claim of entitlement to a compensable disability rating for service-connected headaches.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James Alsup, Counsel



INTRODUCTION

The Veteran served on active duty from May 1987 to May 2007. 

This matter comes before the Board of Veterans Appeals (Board) on appeal from February 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied the Veteran's claim for a compensable disability rating for service-connected headaches and determined that a timely substantive appeal had not been received following the issuance of a September 2008 statement of the case concerning entitlement to a compensable evaluation for headaches.  The Veteran disagreed and perfected an appeal.

The issue of entitlement to a compensable disability rating for service-connected headaches 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.  An August 2007 rating decision granted service connection for the headaches and evaluated the disability as noncompensable, or zero percent disabling, effective June 1, 2007, the day after the Veteran was discharged from active duty.  

2.  VA received the Veteran's notice of disagreement (NOD) on the claim in March 2008, and VA issued a statement of the case (SOC) in September 2008.  

3.  A VA Form-9 substantive appeal was received from the Veteran in January 2009.  

4.  The Veteran did not file a timely substantive appeal to the September 2008 SOC.



CONCLUSION OF LAW

The Veteran did not submit a timely substantive appeal to the August 2007 rating decision.   38 U.S.C.A. § 7105 (West 2002 and Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.302 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served for 20 years in the U.S. Army and during his active service, he suffered from headaches.  In an August 2007 rating decision, the RO granted service-connection for headaches.  VA received the Veteran's notice of disagreement (NOD) concerning the noncompensable rating in March 2008, and VA issued a statement of the case (SOC) in September 2008.  A VA Form-9 substantive appeal was received from the Veteran in January 2009.  The RO informed the Veteran in February 2009 that his substantive appeal was untimely, and the Veteran appealed that determination.  Following the issuance of a statement of the case with respect to that issue in May 2009, the Veteran submitted a document in July 2009, within one year of the decision on appeal, which indicated that he was appealing the headaches issue.  He also requested that "VA recognize that I have a disability of chronic headaches and assign the appropriate disability rating accordingly effective my original claim of Aug 2007."  The Board construes this document as a substantive appeal not only with respect to the issue of the appropriate rating for his service-connected headaches but also as to the timeliness of the earlier substantive appeal.  In effect, his argument was that the issue on appeal should be that of an increased initial rating for his headaches by virtue of him having appealed the rating assigned in the August 2007 rating decision.  While the RO did not include this issue in the March 2010 supplemental statement of the case, the Board finds that there was no need to address this issue therein as no pertinent evidence was received concerning this issue after the statement of the case.  See 38 C.F.R. § 19.31(b)(1) (2012).

Generally, upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The issue of timeliness of a substantive appeal is governed by the interpretation of law. In such a case, VAs duty-to-assist and notify the Veteran with respect to his claims has no application. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As discussed below, the Veteran has been properly notified of the jurisdictional problem and he has been afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness.

The Veteran originally submitted a claim for VA benefits, including for service connection for headaches, prior to his discharge from active duty.  An August 2007 rating decision granted service connection for the headaches and evaluated the disability as noncompensable, or zero percent disabling, effective June 1, 2007, the day after the Veteran was discharged from active duty.  VA received the Veteran's notice of disagreement (NOD) on the claim in February 2008, and VA issued a statement of the case (SOC) in September 2008 that denied the claim for an increased disability rating.  The cover letter to the SOC informed the Veteran that he had to file an appeal within 60 days after the date of the cover letter, or "within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed.  He was further informed that if VA did not "hear from you within this period, we will close your case."  

VA received a December 2008 statement from the Veteran in support of his claim for "100%  Permanent and Total Disability."  He discussed his low back pain, as well as pain in his hips and pelvis.  The Veteran did not mention his headaches therefore the Board finds that this document cannot be construed as a substantive appeal.  The Veteran next submitted a VA Form-9 substantive appeal in January 2009.  In a February 2009 letter, the RO informed the Veteran that his claim for an increased disability rating based on his February 2008 NOD was no longer in effect because he did not submit a substantive appeal to the September 2008 SOC within the 60 days provided by regulation.  The RO denied the claim for an increased disability rating in the February 2009 rating decision that is the subject of this appeal.

An appeal consists of a timely filed NOD in writing and, after a statement of the case has been issued, a timely filed substantive appeal.  38 C.F.R. § 20.200 (2012).  A notice of disagreement must be filed within one year from the date that the rating decision was mailed to the Veteran.  38 C.F.R. §§ 20.300, 20.302(a) (2012).  Generally, a substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the 1-year period from the date of mailing of the rating decision.  38 C.F.R. § 20.302(b) (1) (2012).  Exceptions to the general rule include when a Veteran submits additional evidence within 1-year of the date of mailing of the SOC and the additional evidence requires issuance of a supplemental statement of the case (SSOC).  38 C.F.R. § 20.302(b) (2) (2012).  In addition, an extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension must be made in writing and must be made prior to expiration of the time limit for filing the substantive appeal.  38 C.F.R. § 20.303 (2012).  

When the Rules require that any written 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 of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305, 20.306.

The United States Court of Appeals for Veterans Claims (Court) has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme requiring the filing of both a notice of disagreement and formal appeal. When an appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the agency of original jurisdiction.  Roy v. Brown, 5 Vet. App. 554, 556 (1993).  Under  38 U.S.C.A. § 7105(d)(3), questions as to timeliness or adequacy of response shall be determined by the Board.  See also Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) and In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997).  Jurisdictional time periods for taking an appeal may not be extended for equitable reasons.  Bowles v. Russell, 551 U.S. 205 (2007).  

The Veteran did not submit a substantive appeal within 60 days of the September 2008 SOC or within one year of the August 2007 rating decision.  The Veteran's untimely substantive appeal was received at VA on January 27, 2009.  The postmark is not of record, however, even presuming that it was received five days prior to the date of receipt on January 27, 2009, this would not result in a timely filing.  The reason for this is that the rating decision issued on September 21, 2007, which is more than one year earlier, and the statement of the case issued on September 8, 2008, which is more than 60 days prior to January 27, 2009 or five days prior to January 27, 2009.  The Board acknowledges that the Veteran believes he is entitled to an effective date of August 2007.  However, the Veteran does not assert that he filed a substantive appeal prior to January 27, 2009 and he has not submitted any documentation such as a certified mail receipt or a copy of a substantive appeal that was postmarked or date stamped as received by VA prior to January 27, 2009. 
 
Finally, the record reveals that the Veteran submitted a December 2008 statement concerning other issues as well as a statement indicating he had no further evidence.  The Board has already determined that the December 2008 submission does not constitute a substantive appeal.  Moreover, no evidence was included nor was there any reference any new evidence.  Thus, the statements do not meet the requirements stated in 38 C.F.R. § 19.31 and § 20.302(b)(2) (2012) for the issuance of a SSOC.  Accordingly, the Board finds that a timely substantive appeal was not submitted with respect to the August 2007 rating decision.  

The Board has considered the Court's holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the Court found that 38 U.S.C.A. § 7105was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely.  Consequently, because the 60-day filing period is not jurisdictional, VA may explicitly or implicitly waive any issue of timeliness in the filing of the substantive appeal and VA is not required to close an appeal for failure to file a timely substantive appeal.   In the present case, however, the RO has not taken any action to indicate to the Veteran that the issue of an effective date for the increased disability rating claim was on appeal; indeed, the RO informed the Veteran In February 2009 that the appeal had been closed.  Therefore, the Board finds that there is no evidence that indicates the RO waived the requirement of a substantive appeal or led the Veteran to believe that the requirement had been waived.  

For the reasons stated above, the Board finds that the Veteran did not submit a timely substantive appeal to the August 2007 rating decision.


ORDER

A timely substantive appeal was not filed with regard to an August 2007 rating decision which assigned a noncompensable rating for service-connected headaches; the appeal of this issue is dismissed.


REMAND

The Veteran seeks a compensable disability rating for his service-connected headaches.  He generally contends that the headaches are worse than they were evaluated by VA.  At the time of the VA examination in March 2009, the Veteran reported having headaches once or twice a week and did not report prostration.  A January 2011 medical record notes the Veteran's complaint of headaches two to three times a week and an October 2011 medical record indicates that he now has headaches at least three times a week.  As there is an indication there may have been a material change with respect to his service-connected disability, another VA examination should be conducted.  See Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination).
 

Diagnostic Code 8100 provides a maximum 50 percent disability rating with evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 30 percent disability rating is provided with evidence of characteristic prostrating attacks occurring on an average once a month over last several months.  A 10 percent disability rating requires evidence of characteristic prostrating attacks averaging one in 2 months over last several months.  A noncompensable disability rating is provided for evidence of less frequent attacks.  See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012).  The rating criteria do not define "prostrating."

As the Veteran receives medical care through VA, any additional VA treatment records should be obtained on remand.  He also obtains medical care through Tricare, and should be requested to provide or identify any additional relevant Tricare records on remand.  

Accordingly, the case is REMANDED for the following action:

1.  Ensure that all VA treatment records pertaining to the Veteran since November 2009 are obtained.

2.  Contact the Veteran in writing and request that he provide or identify any additional records of medical treatment, including Tricare records, that are relevant to his claim for an increased evaluation for his service-connected headaches.  Request that he provide any necessary signatures on patient information releases to allow VA to obtain any identified private treatment records.  

3.  Schedule the Veteran for a medical examination by an appropriate VA examiner who should review the Veteran's VA claims folder prior to the examination.  The examiner should provide a complete description of the current nature and extent of the Veteran's headache disability including whether any of the Veteran's headaches are prostrating in nature.

The examiner should also specifically address how often the Veteran has headaches, how long they last, and whether they result in economic inadaptability.  

4.  Ensure completion of the foregoing and any other development deemed necessary and readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board.

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. 2012).




______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs