Citation Nr: 1332919	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  10-30 930	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Whether the Veteran timely filed a substantive appeal with a February 2005 rating decision that denied matters of entitlement to service connection for tinnitus, a right foot disability, and headaches.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for headaches.

4.  Entitlement to service connection for a right foot disability.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Sorisio, Counsel


INTRODUCTION

The Veteran served on active duty from November 1998 to March 1999, January to July 2000, and February 2003 to June 2004.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) and an April 2009 decisional letter of the Portland, Oregon RO.  The case remains in the jurisdiction of the Portland RO.

A Board hearing on the matter of whether a timely substantive appeal was filed with the February 2005 rating decision was held before the undersigned in September 2012.  A transcript of this hearing is of record.  

For the reasons explained in the decision below, the issues of entitlement to effective dates prior to November 1, 2006 for the awards of service connection for tinnitus and migraine headaches have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2013).

The matter of entitlement to service connection for a right foot disability is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  A February 2005 rating decision denied, in pertinent part, service connection for tinnitus, headaches, and a right foot disability.

2.  A Notice of Disagreement (NOD) with the denial of these issues was received by VA in May 2005.

3.  A Statement of the Case (SOC) involving these matters was issued August 31, 2006; the cover letter advised the Veteran that to perfect an appeal he had to submit a substantive appeal within 60 days or within the remainder, if any, of the one-year period following date of notification of the rating decision appealed.  

4.  On November 1, 2006, the Veteran filed VA Form 9, Substantive Appeal.

5.  In February 2007, the RO sent the Veteran a letter notifying him that it was accepting his VA Form 9 as timely.

6.  A September 2009 rating decision granted service connection for tinnitus, evaluated as 10 percent disabling, effective November 1, 2006.

7.  A December 2009 rating decision granted service connection for migraine headaches, evaluated as 30 percent disabling, effective November 1, 2006.


CONCLUSIONS OF LAW

1.  The criteria for filing a timely substantive appeal of the February 2005 rating decision denying matters of service connection for tinnitus, a right foot disability, and headaches are met.  38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303, 20.305 (2013).

2.  The claims of entitlement to service connection for tinnitus and headaches are moot and are dismissed.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.202 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Timeliness of Substantive Appeal

The Veteran alleges that his VA Form 9, Substantive Appeal, should be accepted as timely because various circumstances prevented him from filing his Substantive Appeal on time.  

An appeal consists of a timely filed NOD in writing, and after a SOC has been furnished, a timely filed Substantive Appeal.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2013).

A Substantive Appeal must be filed within sixty days after mailing of the SOC, or within the remainder of the one-year period from the mailing of notification of the determination being appealed.  38 C.F.R. § 20.302 (2013).  Extensions of time for filing a Substantive Appeal may be granted for good cause.  38 C.F.R. § 20.303 (2013).

A February 2005 rating decision denied the Veteran's claims of service connection for tinnitus, headaches, and a right foot disability.  The Veteran filed a timely NOD in May 2005 and the RO issued a SOC on August 31, 2006.  The Veteran thus had until October 30, 2006 to submit a timely Substantive Appeal.  See 38 C.F.R. §§ 20.302, 20.305 (2013).

On November 1, 2006, the Veteran, through his representative, submitted via facsimile a request for an extension of two days to file his Substantive Appeal, and also filed VA Form 9.  The VA Form 9 specified that he was appealing the denials of service connection for tinnitus, headaches, and a right foot disability.  The Veteran also requested a hearing before the Board at his local RO.  The Veteran indicated that he was filing his VA Form 9 late because he had been undergoing extensive medication modifications for his service-connected mental health condition, which had impacted his ability to engage in normal activities of daily living.  Additionally, he noted that he had been unable to secure an appointment to obtain help from his County Veterans Service Officer until that day.

In February 2007, the RO sent the Veteran a letter acknowledging his request for a hearing before the Board.  This letter specifically states in the first paragraph that the RO was accepting the Veteran's VA Form 9 as timely because of the Veteran's statement that his health reasons delayed him from timely filing the VA Form 9.  

In March 2007, the Veteran's representative submitted written argument in support of the Veteran's service connection claims.

In April 2009, the RO sent the Veteran a letter informing him that his November 1, 2006 VA Form 9 was not timely and that the February 2005 decision had become final.  The letter also indicated that the RO would treat his VA Form 9 as a petition to reopen his claim.  

The United States Court of Appeals for Veterans Claims (Court) has held that VA waives making an objection to the timeliness of a Substantive Appeal when it takes actions that lead a Veteran to believe that his appeal was perfected.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  Here, the RO's February 2007 letter informing the Veteran that his untimely VA Form 9 was being accepted as timely clearly led the Veteran to believe that his appeal had been perfected.  The RO also accepted the Veteran's representative's March 2007 written argument on the underlying service connection issues.  Furthermore, the RO did not inform the Veteran that it found his VA Form 9 untimely until April 2009, more than two years after it notified him that it had reached the opposite conclusion.  The Board finds that the Veteran was prejudiced by VA's actions in this case and, as a result, concludes that he timely perfected an appeal of the February 2005 rating decision's denial of service connection for tinnitus, headaches, and a right foot disability.  Therefore, the appeal is granted.

II.  Service Connection for Tinnitus and Migraine Headaches

Since the Board has concluded that the Veteran timely perfected an appeal of the issues of service connection for tinnitus and headaches, the Board has jurisdiction over those claims.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.200 (2013).  However, the RO treated the Veteran's November 2006 VA Form 9 as a petition to reopen his claims and granted service connection for these two issues.  Specifically, in September 2009, the RO granted service connection for tinnitus, evaluated as 10 percent disabling, effective November 1, 2006, and, in December 2009, granted service connection for migraine headaches, evaluated as 30 percent disabling, effective November 1, 2006.

The RO's grant of service connection for these disabilities renders the service connection issues moot.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.202 (2013).  Here, as a result of the RO's action, there no longer remains a case or controversy before the Board.  Therefore, the appeals seeking entitlement to service connection for tinnitus and headaches are dismissed.

The RO has assigned effective dates of November 1, 2006 to the award of service connection for these issues, treating the Veteran's November 1, 2006 VA Form 9 as a petition to reopen these claims.  Since the Board's decision above finds the November 1, 2006 VA Form 9 to be timely, the record raises the issues of whether the Veteran is entitled to earlier effective dates for the awards of service connection for tinnitus and migraine headaches, since the Veteran timely perfected an appeal of the underlying service connection issues based on his April 2004 claim.  As the RO has not adjudicated these issues in the first instance, the Board is precluded from taking any adjudicatory action on them.  Thus, as noted in the Introduction, the Board is referring the effective date issues to the AOJ for further consideration.
ORDER

The Veteran timely filed a Substantive Appeal with the February 2005 rating decision denying service connection for tinnitus, headaches, and a right foot disability.

The claims for entitlement to service connection for tinnitus and headaches are dismissed.


REMAND

Since the Board has concluded that the Veteran timely perfected an appeal of the issue of service connection for a right foot disability, the Board has jurisdiction over that appeal.  In his November 2006 VA Form 9, the Veteran indicated that he wanted to appear at a hearing before the Board at a local VA office.  Pursuant to 38 C.F.R. § 20.700, a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  See 38 U.S.C.A. § 7107 (West 2002).  Although the Veteran has requested a personal appearance before the Board at a local VA office, he has not specified whether he would like a videoconference or Travel Board hearing.

Because the AOJ schedules Travel Board and videoconference hearings, the case is REMANDED for the following:

Ask the Veteran to clarify whether he wants a videoconference hearing or a Travel Board hearing.  Thereafter, schedule the Veteran for a hearing pursuant to his clarification.  Then, process the case in accordance with established appellate procedure.

The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. § 5109B (West Supp. 2013).




______________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs