Citation Nr: 1321708 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-00 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether a timely substantive appeal to the April 3, 2008 statement of the case has been filed with respect to the claim of entitlement to service connection for coronary artery disease. 2. Whether a timely substantive appeal to the April 3, 2008 statement of the case has been filed with respect to the claim of entitlement to service connection for bilateral shoulder arthritis. 3. Whether a timely substantive appeal to the April 3, 2008 statement of the case has been filed with respect to the claim of entitlement to service connection for glucose intolerance (claimed as diabetes mellitus). 4. Whether a timely substantive appeal to the April 3, 2008 statement of the case has been filed with respect to the claim of entitlement to a disability rating in excess of 30 percent for chondromalacia of the right patella status-post total knee arthroplasty with scar. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for coronary artery disease. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral shoulder arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to August 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's request to reopen his claims of entitlement to service connection for coronary artery disease and bilateral shoulder arthritis. This case also comes before the Board on appeal from the RO's June 18, 2008 determination that the Veteran's June 6, 2008 substantive appeal was not timely filed. The issue of whether clear and unmistakable error (CUE) is present in an April 2007 rating decision that denied service connection for coronary artery disease and bilateral shoulder arthritis has recently been raised by the representative but has not been addressed by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. 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 Historically, the Veteran filed a claim on June 2006 for, inter alia, (1) entitlement to service connection for coronary artery disease, (2) entitlement to service connection for bilateral shoulder arthritis, (3) entitlement to service connection for glucose intolerance (claimed as diabetes mellitus), and (4) entitlement to a disability rating in excess of 30 percent for chondromalacia of the right patella status-post total knee arthroplasty with scar. (While the Veteran also filed a claim for entitlement to service connection for allergic rhinitis [claimed as chronic sinus disease] in June 2006, the RO granted that claim in an April 2008 rating decision.) The RO issued a rating decision on April 23, 2007 which, inter alia, denied the Veteran's service connection claims and continued his 30 percent rating for chondromalacia of the right patella with scar. In August 2007, the Veteran filed a timely notice of disagreement. On April 3, 2008, the RO issued a statement of the case as to those four issues. The Veteran filed a substantive appeal as to all four issues on June 6, 2008. On June 18, 2008, the RO notified the Veteran that his substantive appeal was not timely received, and informed him that he had one year from the date of this letter to appeal the decision. The RO simultaneously initiated new claims, including as to whether new and material evidence had been received to reopen claims of entitlement to service connection for coronary artery disease, bilateral shoulder arthritis, and glucose intolerance, and entitlement to a disability rating in excess of 30 percent for chondromalacia of the right patella with scar. On August 25, 2008, the Veteran submitted a notice of disagreement with the RO's June 18, 2008 determination that the Veteran's June 6, 2008 substantive appeal was not timely filed. Pertinent to the current remand, the issue of whether a timely substantive appeal has been received is an appealable issue to which a claimant is entitled to file a notice of disagreement and as to which he or she must then receive a statement of the case. See Marsh v. West, 11 Vet. App. 68, 470 (1998). In a case in which an appellant has expressed disagreement in writing with a decision by an agency of original jurisdiction, and the agency of original jurisdiction failed to issue a statement of the case, the Board should remand the matter for appropriate action. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board is required to remand the issue of whether a timely substantive appeal was received to appeal the April 3, 2008 statement of the case. Inasmuch as the issues perfected on appeal-whether new and material evidence has been received to reopen claims of entitlement to service connection for coronary artery disease and bilateral shoulder arthritis-are inextricably intertwined with the issue of whether a timely substantive appeal was received to appeal the April 3, 2008 statement of the case denying service connection for those issues in the first instance, the Board finds that a remand of the former issues is necessary to allow the RO/AMC to appropriately develop and adjudicate the latter issues. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The RO should undertake all actions required by 38 C.F.R. § 19.26, including the issuance of a statement of the case on the issue of whether a timely substantive appeal was received to appeal the four issues decided in the April 3, 2008 statement of the case-namely, entitlement to service connection for coronary artery disease, bilateral shoulder arthritis, and glucose intolerance (claimed as diabetes mellitus), and entitlement to a disability rating in excess of 30 percent for chondromalacia of the right patella status-post total knee arthroplasty with scar. The RO/AMC must furnish the Veteran the appropriate time period in which to perfect an appeal. The issue(s) should only be returned to the Board if the Veteran files a timely substantive appeal. The RO/AMC is advised that it should not return the claims file to the Board until after the Veteran has either perfected an appeal of his timeliness of substantive appeal claims, or the time period for doing so has expired, whichever occurs first. 2. After completing the above actions, and any additional development deemed warranted, the RO/AMC should readjudicate the issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for coronary artery disease and bilateral shoulder arthritis. If the issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for coronary artery disease and bilateral shoulder arthritis remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ K. A. BANFIELD 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).