Citation Nr: 1322435 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-28 078A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the Veteran timely filed a substantive appeal with regard to the issue of entitlement to an increased rating for a left knee disability decided in a March 2008 rating decision. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: James R. LeMieux, Esquire WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision and an August 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and found that a timely substantive appeal was not filed regarding the denial of an increased rating for a left knee disability in a March 2008 rating decision. The Veteran and his spouse provided testimony during a hearing before the undersigned at the RO in July 2012. A transcript is of record. The Board notes that an appeal regarding service connection for an acquired psychiatric disability was certified to the Board in November 2012. However, and despite the case falling under the jurisdiction of the Board, and not the RO, the full benefits sought on appeal were granted with the award of service connection for posttraumatic stress disorder (PTSD) with anxiety and depression in a January 2013 rating decision. As such, the issue will not be considered herein. The issue of entitlement to TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to service connection for bilateral hearing loss 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. FINDING OF FACT A substantive appeal was received more than one year after a March 2008 decision and more than 60 days following a March 2009 statement of the case (SOC), which both denied entitlement to an increased rating for a left knee disability. CONCLUSION OF LAW The criteria for a timely filed substantive appeal have not been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.305 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted. Generally, the VCAA requires VA to notify a veteran of the information and evidence necessary to substantiate a claim after he has filed one and to assist a veteran in obtaining evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA does not apply to the issue on appeal because the matter involves not the substantiation of the underlying service connection claims, but rather the procedures for appealing a decision. Moreover, the outcome of the case is determined as a matter of law, not fact. In this case, the Veteran was provided with the required information for filing an appeal and a remand for further notification is not necessary. By a rating decision, dated on March 17, 2008, the RO denied entitlement to an increased rating for a left knee disability. Notification of the decision was sent to the Veteran on March 26, 2008. The Veteran filed a timely NOD in March 2008 that was pertinent to his claim for an increased rating for the left knee disability. On March 23, 2009, the RO issued an SOC for the claim. A copy of the SOC was properly sent to the Veteran and his representative on the same date. See 38 C.F.R. § 19.30(a) (2012). When an SOC is issued, a veteran and his representative will also be furnished: information on the right to file, and time limit for filing, a substantive appeal; information on hearing and representation rights; and a VA Form 9 (Appeal to the Board of Veterans' Appeals ). 38 C.F.R. § 19.30(b). The cover letter to the SOC included the requisite information and a VA Form 9 was listed as an enclosure. The letter told the Veteran that he must file an appeal with the RO within 60 days of the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he had appealed. See 38 C.F.R. § 20.302(b)(1) (2012). The letter also informed the Veteran that an extension could be requested within the 60 days for more time to file an appeal. See 38 C.F.R. § 20.303 (2012). Proper completion and filing of a substantive appeal are the last actions that a veteran needs to take to perfect an appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2012). On August 10, 2009, the RO received a VA Form 9, substantive appeal for the issue of entitlement to an increased rating for a left knee disability. In an August 2009 decision letter, the RO determined that the Veteran did not timely file a substantive appeal following the March 2008 rating decision. The RO noted that they had explained in the March 2009 SOC that the Veteran had one year from the notification of their decision or 60 days from the SOC to submit a VA Form 9 and perfect his appeal. The RO indicated that because they had not received a VA Form 9 in time, his case had become closed and the March 2008 rating decision had become final. See 38 U.S.C.A. § 7105. The Veteran timely appealed the issue of whether he had timely filed a substantive appeal of the March 2008 rating decision. In July 2012, the Veteran testified before the Board, at which time he stated that he was misinformed by his former representative regarding the time limits for appealing the claim. He and his current representative stated that there was good cause to reopen the claim and retroactively award benefits for the left knee disability. The threshold question that the Board must resolve is whether the Veteran entered a timely substantive appeal following a March 2008 rating decision. In this case, even the Veteran acknowledges that it was not. A Substantive Appeal consists of a properly completed VA Form 1-9, Appeal to the Board of Veterans Appeals, or correspondence containing the necessary information. The Substantive Appeal must set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination or determinations being appealed. To the extent feasible, the argument must be related to specific items in the Statement of the Case and any prior Supplemental Statement of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination or determinations being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) which is not specifically contested. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. The Veteran did not file a substantive appeal within one year of March 26, 2008, the date the rating decision was mailed to him, or within 60 days of March 23, 2009, the date on which the SOC was mailed to him. He did not submit a VA Form 9 until August 2009, more than four months after the SOC. Moreover, he did not make any additional argument regarding the left knee disability which could be construed as a substantive appeal. Id. The Veteran recognizes that he did not timely file a VA Form 9. According to the Veteran, it was the result of misinformation from his representative as to the time limit for the appeal. However, the Board notes that VA is not responsible for misinformation or miscommunication between the Veteran and his representative. VA had already fulfilled its duty to notify the Veteran of his appellate rights. In the March 2009 SOC, the Veteran was informed of the steps that he needed to take if he disagreed with the determination in the SOC. Specifically, the Veteran was notified that he had a limited time in which to file a substantive appeal- 60 days from the date the SOC was issued or the remainder of the one-year period that began with the date he was notified of the denial. Thus, VA had fulfilled its duty to notify the Veteran of his appellate rights. The Board acknowledges the decision of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37 (2009), which held that the 60- day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. In the Veteran's case, unlike Percy, there has been no explicit or implicit representation by VA, either by the RO or the Board, that it was waiving the filing requirement of a timely substantive appeal. In the August 2009 decision letter, the RO determined that the Veteran did not file a substantive appeal following the March 2008 rating decision. The RO notified the Veteran that he could appeal the determination as to whether he had filed a timely substantive appeal. The timeliness issue followed the proper procedure to appellate status to the Board. Thereafter, the Board took no action that would represent a waiver of the time requirement for filing the substantive appeal. At this time, the Board declines to waive such requirement. The law is clear that a substantive appeal must be filed with the agency of jurisdiction within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. See 38 C.F.R. § 7104 (West 2002). For the foregoing reasons, the Board concludes that a timely substantive appeal was not filed following a March 2008 rating decision wherein a claim for entitlement to an increased rating for a left knee disability was denied. Therefore, the issue on appeal must be denied. ORDER A timely substantive appeal was not filed following a March 2008 rating decision, wherein the claim for entitlement to an increased rating for a left knee disability was denied. REMAND During the Board hearing, the Veteran stated that he has continued to receive VA treatment throughout the appeal. He also stated that he received a VA audiogram at the VA hospital in Gainesville. The last VAMC treatment records in the claims file are dated in May 2010 and a VA audiogram is not of record. The Board also notes that VA treatment records indicated a past medical finding of hearing deficiency by a specific provider; however, there is no record of such a finding from that provider or any other. Clearly there are outstanding VA treatment records. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Once all outstanding VA treatment records have been obtained and associated with the claims file, the claim must be reevaluated to determine whether a VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. This includes a finding of hearing deficiency noted in the past medical history of the VA treatment records currently in the claims file, an audiogram, and records of treatment since May 2010. All efforts to obtain these records must be documented in the claims file. 2. Once the above development has been completed, reevaluate whether a VA audiology examination and etiology opinion is warranted for service connection for bilateral hearing loss. If so, provide the examination. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2012). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs