Citation Nr: 1300969	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  09-41 381	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a bilateral shoulder disorder, to include the question of whether a timely appeal of an August 2007 adverse rating decision was perfected.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel



INTRODUCTION

The Veteran served on active duty from January 1981 to January 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, denying various claims, among which was the Veteran's entitlement to service connection for a bilateral shoulder disorder.  Notice of that adverse action was furnished to the Veteran in early September 2007, and later in September 2007, the Veteran initiated a timely appeal.  This was followed by issuance of a statement of the case on September 8, 2008, and the VA's receipt of a substantive appeal, dated November 4, 2008, later in November 2008.  

In November 2008, the RO advised the Veteran in writing that he had failed to timely file a substantive appeal, noting that he failed to submit it within 60 days of the date of issuance of the statement of the case.  He thereafter informed the RO of his intention to appeal the timeliness question and, following the issuance of a statement of the case in October 2009, a substantive appeal as to the timeliness issue was submitted later in October 2009.  

Pursuant to his request, the Veteran was afforded a hearing before the Board, sitting at the RO, in March 2012 specifically as to the timeliness issue.  A transcript of that proceeding is of record.  

The Board herein determines that the Veteran timely perfected his appeal of the RO's adverse determination of August 2007, denying his claim for service connection for right and left shoulder disorders.  As his February 2007 claim therefor remains pending, further adjudicatory action is needed prior to the Board's consideration of the merits of the service connection issue.  

The issue of entitlement to service connection for a bilateral shoulder disorder, based on the February 2007 claim therefor, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

It is at least as likely as not that a timely appeal of the August 2007 denial by the RO of entitlement to service connection for right and left shoulder disorders was effectuated by the Veteran. 


CONCLUSION OF LAW

The criteria for a timely appeal of the RO's August 2007 denial of entitlement to service connection for right and left shoulder disorders have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.202, 20.300, 20.301, 20.302 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-43 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Sabonis v. Brown, 6 Vet. App. 426 (1994).  Here, there is a question of fact as to whether the Veteran timely filed an appeal, and because the Board finds in favor of the Veteran, the need to discuss whether there was compliance with the VCAA is obviated.

Applicable law and regulations provide that rating decisions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a).  The claimant has one year from the date of mailing of notification of an RO decision to initiate and perfect an appeal by filing of a notice of disagreement and substantive appeal with the decision, and the decision becomes final if an appeal is not filed within the allowed time period.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2012). 

An appeal to the Board is initiated by filing a timely notice of disagreement, and is perfected by filing a timely 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.  38 C.F.R. § 20.202.  It should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed.  Id.  

To be considered timely, a substantive appeal must be filed within 60 days from the date that the RO mails the statement of the case to the appellant, within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, or within any extended time limits prescribed pursuant to a timely-filed request for extension of time.  38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 20.302(b), 20.303 (2012).  If the claimant fails to file a substantive appeal in a timely manner, "he is statutorily barred from appealing the RO decision."  Roy v. Brown, 5 Vet. App. 554, 556 (1993). 

A notice of disagreement or substantive appeal may be filed by the appellant, or by his representative, if a proper power-of-attorney or declaration of representation, as applicable, is on the record or accompanies such notice of disagreement or substantive appeal.  38 C.F.R. § 20.301.  

In this instance, a rating decision was entered in August 2007, denying the Veteran's claim for a bilateral shoulder disorder.  In September 2007, the RO mailed notice of the denial to the Veteran, and he responded later in September 2007 with the submission of a notice of disagreement regarding that denial.  That was followed by the RO's issuance of a statement of the case that was an attachment to the RO's letter, dated September 8, 2008.  

What happened thereafter is unclear as concerns the timeliness of the Veteran's submission of his substantive appeal.  The RO contends that it did not receive the substantive appeal until November 21, 2008, as reflected by the date stamp imprinted by the RO's Veterans Service Center.  That submission, however, reflects the Veteran's intention to complete his appeal as of November 4, 2008, the date on which he affixed his signature to the aforementioned document.  He has also provided sworn testimony that on or about November 4, 2008, he placed that document in the possession of the VARO's Homeless Veteran Coordinator, M.W., who was to carry that document to the VARO for review by adjudication personnel.  In addition, he reported that he routinely provided pertinent documents to M.W., whose job it was to maintain contacts with homeless veterans in the community served by the RO and that it was his practice to sign the documents at the time he turned them over to M.W.  

The Veteran is credible to offer an account of what events occurred in the development of his claim for service connection for a bilateral shoulder disorder and his past contacts with M.W.  His account that on or about November 4, 2008, he placed his substantive appeal relating to the RO's August 2007 denial of his claim for service connection for a bilateral shoulder disability is found to be probative and not otherwise contradicted by the other evidence of record.  While the other evidence does not explicitly corroborate the Veteran's account, there is on file the Veteran's submission to VA in October 2010 relating to a separate matter that is also signed by M.W., Homeless Veteran Coordinator, on the same date as executed by the Veteran, which lends credence to the Veteran's account of exactly how he has transacted business with VA with use of the services provided by M.W.  

The record does not clearly delineate the RO's receipt of a substantive appeal within the time limits prescribed by governing legal authority; however, there is competent, credible, and persuasive evidence of an intent to appeal and of actions by the Veteran and another on his behalf to act upon that intention.  VA has effectuated policy to assist homeless veterans through certain outreach activities undertaken by its employees, one of whom is M.W.  From his persuasive testimony and other statements, the Veteran believed that he was submitting the document in question to VA at the time he turned over possession of that document to M.W.  Moreover, it is apparent that he had followed that procedure on one or more occasions without any resulting problem.  In light of the foregoing, and inasmuch as the Veteran's substantive appeal was date-stamped by VA but approximately 13 days following the expiration of the 60-day period from the date of issuance of the statement of the case, the record, though ambiguous, is found by the Board to be at least in equipoise as to whether a timely appeal was submitted.  The Board will resolve doubt in the Veteran's favor.  38 U.S.C.A. § 5107.  To that extent, alone, the benefit sought by this appeal as to the timeliness of appeal is granted.  That being the case, the appeal of the August 2007 denial of the Veteran's claim for service connection for a bilateral shoulder disorder remains pending and further adjudicatory action as set forth in the Remand below is necessary, before the Board is able to address the merits of that claim.  


ORDER

A timely appeal of the RO's determination entered in August 2007 for the denial of entitlement to service connection for a bilateral shoulder disorder was perfected.  To that extent, alone, the appeal is granted.  


REMAND

The Veteran alleges that a bilateral shoulder disorder originated in service and that he received inservice medical care therefor.  Service treatment records identify complaints of right shoulder pain and limitation in September 1983, with entry of a diagnosis of probable right shoulder bursitis and physical profiles limiting the Veteran's activity for a period due to right shoulder problems.  Postservice medical data denote the Veteran's complaints of longstanding shoulder difficulties and entry of diagnoses of arthralgias in reference thereto.  

To date, no VA medical examination has been afforded the Veteran regarding his claim for service connection for a bilateral shoulder disorder, and inasmuch as there is evidence of inservice shoulder bursitis and current disability, it is advisable to obtain additional medical input as to the nexus of any current shoulder disability to military service.  Accordingly, this portion of the Veteran's appeal is REMANDED for the following actions:

1.  Obtain all pertinent VA treatment records, not already on file, for inclusion in the Veteran's VA claims folder.  

2.  Ascertain whether the Veteran desires a hearing before RO or Board personnel as to the merits of his original claim for service connection for a bilateral shoulder disorder and, if so, undertake all necessary action to afford him that hearing.  

3.  Thereafter, afford the Veteran a VA medical examination in order to ascertain the nature and etiology of a claimed bilateral shoulder disorder.  The claims folder should be made available to the examiner in conjunction with the examination.  That examination should entail a complete medical history, clinical examination, and all pertinent diagnostic testing.  All pertinent diagnoses should be set forth. 

The VA examiner is also asked to furnish an opinion, with a complete supporting rationale, as to the following:

a)  Is it at least as likely as not (50 percent or greater degree of probability) that any existing disorder of either shoulder originated in service or is otherwise attributable to any period of active duty or any event thereof?  

b)  Is it at least as likely as not (50 percent or greater degree of probability) that any arthritic process involving either shoulder was present within the one-year period immediately following the Veteran's service separation in January 1984, and, if so, how and to what degree was any indicated arthritis manifested? 

The VA examiner is advised that the term as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence or nexus to service as to find against such matters.  More likely and as likely support the contended relationship; less likely weighs against the claim.

4.  Lastly, readjudicate the merits of the Veteran's February 2007 claim for service connection for a bilateral shoulder disorder based on all the pertinent evidence of record and all governing legal authority, and if the benefit sought on appeal is not granted, provide the Veteran with a supplemental statement of the case and afford him a reasonable period in which to respond, prior to returning the case to the Board for further review. 

No action by the appellant is needed until he receives further notice.  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).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs