Citation Nr: 1306402 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-06 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether there was a timely notice of disagreement filed with respect to a July 2010 rating decision that denied service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for blindness of the right eye. 6. Entitlement to service connection for a back disability. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for a bilateral shoulder disability. 9. Entitlement to service connection for a bilateral leg disability. 10. Entitlement to service connection for a bilateral arm disability. 11. Entitlement to service connection for shortness of breath. 12. Entitlement to service connection for a heart disability. 13. Entitlement to service connection for a prostate disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1954 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2012 determination of a Department of Veterans Affairs (VA) Regional Office (RO), which found that the Veteran did not file a timely notice of disagreement with respect to a July 2010 rating decision that denied entitlement to service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. In January 2013, a video conference hearing was held before the undersigned. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims of service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability are being REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. In a July 2010 rating decision, the RO denied the Veteran's claims of entitlement to service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability; the RO notified the Veteran of the rating decision by letter dated August 2, 2010. 2. In September 2010, the Veteran requested a copy of the claims file, after learning that his claims for service connection were denied; in October 2010, the RO furnished the Veteran a complete copy of his claims file. 3. In April 2011, the RO received a statement from the Veteran in which he specifically noted his intent to file a notice of disagreement, albeit with the VA letter of October 2010, regarding conditions he believed to be service connected, together with an enclosed medical release form authorizing VA to obtain his VA treatment records covering "all" service connection claims; this filing may reasonably be construed as a notice of disagreement with the RO denials of service connection made in the rating decision of July 2010. CONCLUSION OF LAW A notice of disagreement with respect to a July 2010 rating decision, which denied the Veteran's claims of service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability was timely filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 19.34, 20.101(c), 20.200, 20.201, 20.300, 20.302, 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the decision herein is entirely favorable to the Veteran, VCAA compliance need not be addressed. Legal Criteria Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case is furnished to the claimant. In essence, the following sequence is required: there must be a decision by the RO, the claimant must express timely disagreement with the decision (a notice of disagreement), VA must respond by explaining the basis of the decision to the claimant, and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. 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. With respect to a notice of disagreement, a written communication from a claimant, or his or her representative, expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a notice of disagreement. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether it constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559, 561 (1999). A broad notice of disagreement may confer appellate jurisdiction over all the issues adjudicated in a rating decision. A specific notice of disagreement, by comparison, may limit appellate jurisdiction to the issue(s) specifically identified in the notice of disagreement. All communications should be liberally construed. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). A claimant or his representative must file a notice of disagreement with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one year time period, the RO decision becomes final. 38 U.S.C.A. § 7105(c) ; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C.A. § 7105(c). The date of mailing of the letter of notification from the RO 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 C.F.R. § 20.302(a). A notice of disagreement postmarked prior to expiration of the one year period will be accepted as having been timely filed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.305(a). 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. 38 C.F.R. § 20.305(a). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed notice of disagreement, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Whether a notice of disagreement has been filed on time is an appealable issue. If the claimant or his representative protests an adverse determination made by the RO with respect to timely filing of the notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c). If there is a failure to comply with the above-cited law and regulations governing appellate procedure, it is incumbent on the Board to reject the application for review on appeal. See 38 U.S.C.A. §§ 7105(d)(5), 7108; see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [the Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction]. Analysis In May 2010, the Veteran filed claims of service connection for numerous disabilities. In a July 2010 rating decision, the RO denied all of the Veteran's claims, namely, entitlement to service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. In a letter dated August 2, 2010, the RO notified the Veteran of the rating decision and apprised him of his procedural and appellate rights by way of an enclosed VA Form 4107 ("Your Rights to Appeal Our Decision"). The Veteran was informed that he had one year from the date of the notice letter to appeal the rating decision of July 2010. In September 2010, the RO received a statement from the Veteran, who requested a copy of his claims file. He noted that he had recently learned that his claims for service connection were denied but that he had not received a copy of the VA denial letter (at a January 2013 hearing, he clarified that he did receive the decision letter dated in August 2010). In October 2010, the RO sent the Veteran a letter acknowledging his request for a copy of the claims file; enclosed with the letter was a complete copy of the claims file. The next evidence in the claims folder that was received from the Veteran was a statement dated in and received by the RO in April 2011, which is within the one-year time period to appeal. In that statement, he asserted that he wished to file a "Notice of Disagreement" to the RO's letter of October 2010. He stated that he was being treated for "these conditions" and believed they should be service connected. He referred the RO to his VA medical records. Attached with the statement was a medical release form dated in April 2011 and signed by the Veteran, authorizing VA to obtain his medical records from the Dorn VA Medical Center for the period of 2008 to the present in relation to "[A]ll SC claims." It is the Board's judgment that this statement, with the enclosed medical release form referencing all claims for service connection, may reasonably be construed as a notice of disagreement with the RO's rating decision of July 2010 that denied service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. See 38 C.F.R. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). Under VA regulations, the Veteran had one year - that is, until August 2, 2011 - to file a notice of disagreement. See 38 C.F.R. §§ 20.302(a), 20.305. As noted, he initially requested a copy of his claims file, and there is no indication in his request of his intent to file a notice of disagreement with the July 2010 rating decision. However, in the statement filed in April 2011, he clearly indicated his desire to file a notice of disagreement. In this case, confusion has stemmed from the fact that in his April 2011 statement, the Veteran expressed disagreement with a VA letter dated in October 2010, rather than the VA notice letter of August 2010 relating to the July 2010 rating decision. The RO followed up with a letter in April 2011, asking the Veteran to clarify if it was his intent to disagree with any part of the July 2010 decision, and notified him that he had until August 1, 2011 to reply with a specific issue(s) with which he disagreed. The RO would otherwise take no further action on his claim. According to VA call logs, the Veteran made telephone inquiries on July 21, 2011 (at which time it appears that the Veteran also faxed a copy of his April 2011 statement and medical release form) and on August 26, 2011, with regard to the status of his notice of disagreement filed in April 2011. Thereafter, the RO sent the Veteran a letter in late August 2011, referring him to the letter it sent to him in April 2011 about clarifying his notice of disagreement. Then, in December 2011, the RO received a statement from the Veteran's representative on behalf of the Veteran, in which the representative asserted that the notice of disagreement that was sent back in April 2011 pertained to all of the claims denied by the RO in the July 2010 rating decision. The RO recognized the December 2011 statement as a valid, but untimely, notice of disagreement. The Veteran maintains that he timely filed a notice of disagreement in April 2011. Notwithstanding the RO's efforts to obtain clarification from the Veteran after it received his April 2011 statement and medical release form, the Board finds that the April 2011 filing by the Veteran meets the requirements for a timely notice of disagreement. The April 2011 filing expressed dissatisfaction with a VA determination. Despite the fact that the Veteran referred to the wrong VA letter, he did state his belief that his conditions were service connected. As to which claims he believed should be service connected, he indicated that the RO should obtain his VA treatment records as to "[a]ll SC claims," as indicated on the attached medical release form. As earlier noted, the October 2010 VA letter was solely a cover letter addressing the Veteran's request for a copy of his claims file, and there was no appealable issue with regard to the VA's issuance of a copy of the claims file. The only appealable decision by VA at that time was the July 2010 rating decision. In this context, the Veteran in April 2011 can only be seen as expressing disagreement with the July 2010 rating decision. Further, his disagreement was broadly stated ("[a]ll SC claims") and therefore the expression of dissatisfaction was with regard to the entire July 2010 rating decision. If there was any question as to whether the April 2011 was intended by the Veteran to be a notice of disagreement, the records also show that he telephoned VA in July and August 2011, asking about the status of his claims. Additionally, in line with settled caselaw and the nature of VA's pro-claimant benefits system, the Board finds that the Veteran's April 2011 communication is to be liberally construed. Whereas the RO had declared the Veteran's April 2011 filing to be an invalid notice of disagreement, as it was seen as lacking clarity, when viewed in the context of the other records in the file and the timing in which it was received (i.e., within the one-year appellate period of the July 2010 rating decision), the Veteran's April 2011 submission is reasonably construed as a proper notice of disagreement and a desire for appellate consideration. In sum, the Board finds that the Veteran filed a timely notice of disagreement with the RO's rating decision in July 2010, with respect to the denials of service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. The filing of the Veteran in April 2011, which is within the one-year time period for filing, is reasonably construed as a notice of disagreement. 38 C.F.R. § 20.302(a). Accordingly, the Veteran's claim is granted. ORDER The appeal seeking to establish that there was a timely notice of disagreement filed with respect to a July 2010 rating decision that denied entitlement to service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability is granted. REMAND In light of the decision reached herein above, where the Board recognizes that a valid, timely notice of disagreement has been received with regard to an RO rating decision that denied claims of service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability, additional due process is required. The filing of a notice of disagreement signals the initiation of an appeal in a claim. See 38 C.F.R. § 20.200. When there has been adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issues must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Furnish the Veteran and his representative a statement of the case on the claims of service connection for peripheral neuropathy of the upper and lower extremities, diabetes mellitus, blindness of the right eye, a back disability, hypertension, a bilateral shoulder disability, a bilateral leg disability, a bilateral arm disability, shortness of breath, a heart disability, and a prostate disability. In order to perfect an appeal of the claims to the Board, the Veteran must still timely file a substantive appeal after issuance of the statement of the case. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs