Citation Nr: 1307316 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-19 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether the December 2004 rating action denying service connection for Epstein-Barr virus (EBV) residuals was timely appealed. 2. Whether new and material evidence to reopen the claim for service connection for EBV residuals has been received. WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran had active service from February 1954 to October 1957. This appeal to the Board of Veteran's Appeals (Board) originally arose from an October 2006 rating action that denied service connection for EBV virus residuals on the grounds that new and material evidence to reopen the claim had not been received. In May 2009, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decision of December 2009 and July 2011, the Board remanded this case to the RO/AMC for further development of the evidence and for due process development. Please note 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND By rating action of March 2011, the RO determined that a December 2004 rating action denying service connection for EBV residuals was not timely appealed. In April 2011, the veteran filed a Notice of Disagreement with that denial, but the RO did not issue a Statement of the Case (SOC) on that issue or afforded the Veteran an opportunity to perfect the appeal by filing a Substantive Appeal. The July 2011 remand noted above was to cure this procedural defect, inasmuch as the issue of whether the December 2004 rating action denying service connection for EBV residuals was timely appealed is inextricably intertwined with the issue of whether new and material evidence to reopen the claim for service connection for EBV residuals has been received. See 38 C.F.R. §19.9 (2010); Manlincon v. West, 12 Vet. App. 238 (1999). The Board emphasizes that, without the issuance of a proper SOC and the filing of a Substantive Appeal by an appellant, the Board does not have appellate jurisdiction, and may not proceed with a decision on issue of whether the December 2004 rating action denying service connection for EBV residuals was timely appealed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202, 20.302 (2012). In November 2012, the RO/AMC issued an SOC to the Veteran with notification that he needed to respond within 60 days. After recertification of the case to the Board, the November 2012 SOC and accompanying documents were returned by the Postal Service to VA with a new address for the Veteran. Under these circumstances, to insure due process, another attempt must be made to insure that the Veteran receives the necessary documents to pursue his appeal regarding whether the December 2004 rating action denying service connection for EBV residuals was timely appealed. Accordingly, to ensure that all due process requirements are met, this case is hereby REMANDED to the RO via the AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 and Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The RO should insure that the SOC with respect to the issue of whether the December 2004 rating action denying service connection for EBV residuals was timely appealed, along with all necessary forms, is sent to the Veteran at the proper address. The Veteran should then be afforded the opportunity to file a Substantive Appeal. The appellant is hereby reminded that, for the Board to obtain appellate jurisdiction over an inextricably-intertwined issue, which is not currently in appellate status, a timely appeal must be perfected after the issuance of the SOC. 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).