Citation Nr: 1422945 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 07-13 629A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee, residual of an anterior cruciate (ACL) tear and reconstructive surgery with history of instability, to include the question of whether a prior appeal has been timely perfected. 2. Entitlement to an initial compensable rating for residuals of a right ankle sprain, to include the question of whether an appeal has been timely perfected. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD A. Barbier, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This appeal was processed using the Veteran Benefits Management System (VBMS) paperless claims processing system. The Board notes that, in addition to the VBMS file, the Veteran also has an electronic Virtual VA paperless claims file. A review of the documents in Virtual VA reveals that all documents are either duplicative of the evidence in the VBMS file or irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As an initial matter, the Board notes that, in an August 2003 rating decision, the RO granted service connection for degenerative joint disease of the left knee, residual of an anterior cruciate (ACL) tear and reconstructive surgery with history of instability, with an initial 10 percent evaluation, and residuals of a right ankle sprain, with an initial noncompensable evaluation, effective December 1, 2002. Subsequently, the Veteran submitted a notice of disagreement as to the propriety of the initially assigned ratings for both disabilities in March 2004 and the RO issued a statement of the case on March 14, 2005. On June 7, 2005, the RO received the Veteran's substantive appeal. The RO found the substantive appeal to be untimely, but there is no indication that the Veteran or his representative was advised of this determination. Therefore, on remand, the AOJ should inform the Veteran and his representative of the untimeliness of his appeal and allow an appropriate time period for response. Subsequently, in a May 2007 rating decision, the RO continued the 10 percent evaluation for the Veteran's left knee disability. In August 2007, the Veteran, through his representative, submitted a letter expressing his disagreement with the May 2007 rating decision. The Board finds that the Veteran's letter constitutes a timely notice of disagreement with the denial of an increased rating for the Veteran's service-connected left knee disability. 38 C.F.R. § 20.201 (2013). As such, upon remand, the AOJ should issue a statement of the case addressing this issue. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93 (1997). Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter notifying him that that his June 2005 substantive appeal with respect to the issues of higher initial ratings for his service-connected left knee and right ankle disabilities was untimely and informing him of his rights to appeal that decision. Allow an appropriate time period for the Veteran to respond. 2. If the Veteran does not respond, provide the Veteran and his representative with a statement of the case on the issue of entitlement to a rating in excess of 10 percent for the Veteran's service-connected left knee disability. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ A. JAEGER 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) (2013).