Citation Nr: 1514617	
Decision Date: 04/06/15    Archive Date: 04/21/15

DOCKET NO.  10-14 720	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Whether the Veteran's substantive appeal of a September 2008 rating decision was timely filed.  

2.  Entitlement to a compensable rating for right lower extremity radiculopathy prior to November 30, 2010 and to a rating in excess of 20 percent for right lower extremity radiculopathy from November 30, 2010.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Counsel


INTRODUCTION

The Veteran served on active duty from March 1981 to August 1981.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and October 2009 rating decisions by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for bilateral knee arthritis and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and continued a noncompensable rating for right lower extremity radiculopathy, respectively.  

A May 2011 rating decision increased the rating for the Veteran's service-connected right lower extremity radiculopathy to 20 percent, effective November 30, 2010.  The Veteran has not expressed satisfaction with the increase, and the matter remains on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).  The matter has been characterized to reflect that both periods are on appeal.  

The Veteran had also initiated an appeal seeking an increased rating for residuals of a low back injury, adjudicated in an October 2009 rating decision.  However, his December 2010 substantive appeal expressly limited his appeal to the issue of entitlement to an increased rating for right lower extremity radiculopathy.  Consequently, the issue of an increased rating for residuals of a low back injury is not before the Board.  

Finally, the Board notes that the Veteran had also initiated an appeal seeking entitlement to a TDIU rating.  A May 2011 rating decision granted entitlement to a TDIU rating.  Hence, the matter is not before the Board.  

The issue of an increased rating for right lower extremity radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On September 30, 2008, the RO mailed notification to the Veteran of its September 2008 rating decision that, in pertinent part, denied service connection for bilateral knee arthritis; a notice of disagreement (NOD) with that decision was received in October 2008.  

2.  On July 31, 2009, the RO issued a statement of the case (SOC) in response to the Veteran's NOD; it was not returned as undeliverable.  

3.  Resolving all reasonable doubt in the Veteran's favor, a timely substantive appeal was received from the Veteran on August 10, 2009.  


CONCLUSION OF LAW

The Veteran timely perfected an appeal from the September 2008 rating decision that, in part, denied service connection for bilateral knee arthritis.  38 U.S.C.A. §§ 7105, 7108 (West 2014); 38 C.F.R. §§ 3.109, 20.200, 20.202, 20.302, 20.303 (2014).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Because the issue addressed herein is a procedural claim-processing issue and not the underlying claim for VA benefits, and the law is dispositive, the VCAA notice and assistance provisions do not apply.  See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction.  38 U.S.C.A. § 7104; 38 C.F.R. §§ 19.4, 20.101.  The decision as to timeliness and adequacy of a substantive appeal will be made by the Board.  38 U.S.C.A. § 7108; 38 C.F.R. § 20.101(c), (d).  

An appeal consists of a timely filed NOD and, after a SOC has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information.  Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal.  38 C.F.R. § 20.202.  

The substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later.  The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b).  An extension of the 60-day deadline to file the substantive appeal may be granted for good cause shown.  A request for such an extension must be made in writing prior to the expiration of the time limit for filing the substantive appeal.  38 C.F.R. § 20.303.  The RO may close an appeal without notice to the appellant for failure to respond to an SOC within the period allowed.  38 C.F.R. § 19.32.  

Where a written document is required to be filed within a specified time period, a response postmarked prior to expiration of the time limit will be accepted as timely filed.  38 C.F.R. § 20.305(a).  In the event that the postmark is not of record, the postmark date will be presumed to be 5 days prior to the date of receipt of the document by VA.  In calculating this 5 day period, Saturdays, Sundays, and legal holidays will be excluded.  In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included.  38 C.F.R. § 20.305(a).  Where the time lime limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.  Id.  

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

On September 30, 2008, the RO issued a rating decision that, in pertinent part, denied service connection for bilateral knee arthritis.  A timely NOD with that decision was received in October 2008.  

On July 31, 2009, the RO issued a SOC in response to the Veteran's NOD and mailed it with a notification letter, which included notice that a substantive appeal must be filed with the RO within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the September 2008 rating decision.  A VA Form 9 was listed as an enclosure to the letter.  An RO employee initialed the copy of the letter in the claims file to show that it had been attached.  The letter also stated that if the substantive appeal was not filed within the specified period, the case would be closed, and any request for an extension of time to file should be made prior to the expiration of the 60-day time limit.  

The Veteran submitted a VA Form 21-4138 indicating that he was seeking an increased rating for radiculopathy of the right and left lower extremities, received by the RO on August 10, 2009.  
In a November 2009 statement, the Veteran asserted that the VA Form 9 had been sent to the RO dated in August 2009, and that he believed the VA Form 9 was timely.  Notably, the VA Form 9 in question is dated August 6, 2009, dated the same as the above-noted VA Form 21-4138 that was received by the RO on August 10, 2009.  

As indicated by the Veteran's representative, there is a VA Form 9 that has no receipt date stamp on the form.  See November 2014 Informal Hearing Presentation.  Based on the Veteran's statements and the fact that there is a VA Form 21-4138 dated the same as the VA Form 9 in question, and the VA Form 21-4138 was received by the RO on August 10, 2009, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran submitted a substantive appeal that was received on August 10, 2009, as to the matter of entitlement to service connection for bilateral knee arthritis.  The VA Form 9 was therefore received within 60 days from the date on which the RO sent a SOC.  

Accordingly, the Board finds that the Veteran timely perfected an appeal of the September 2008 rating decision, and that the issue of bilateral knee arthritis remains in appellate status.  


ORDER

The Veteran's substantive appeal with the denial of service connection for bilateral knee arthritis was timely filed, and to this extent only, the appeal is granted.  


REMAND

The Veteran also seeks entitlement to increases in the ratings for his service-connected right lower extremity radiculopathy, rated 0 percent prior to November 30, 2010, and rated 20 percent since November 30, 2010.  

Initially, the Board notes that in a December 2011 supplemental statement of the case (SSOC), the RO stated that there was "no clinical evidence of record which establishes your service connected radiculopathy of the right lower extremity warranted an evaluation in excess of 20 percent prior to November 30, 2010."  As noted above in the Introduction, a May 2011 rating decision granted an increased (20 percent) rating for the Veteran's right lower extremity radiculopathy, effective November 30, 2010.  Hence, it appears that the disability rated 0 percent prior to November 30, 2010, and 20 percent since November 30, 2010.  However, based on the December 2011 SSOC, it is unclear if the RO granted a percent rating throughout the appeal period, and the issue should be characterized as entitlement to a rating in excess of 20 percent throughout the appeal period.  Accordingly, such matter should be clarified by the RO for proper adjudication of the claim.  

In addition, the most recent VA examination was conducted in September 2010, more than four years ago.  Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his right lower extremity radiculopathy.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).  Thus, the issue must be remanded.  

Finally, as the claims file is being returned, the Board further finds that any outstanding evidence regarding his claim should be obtained.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1. The RO should physically or electronically associate with the claims file updated VA treatment records pertaining to the Veteran's right lower extremity radiculopathy and bilateral knee arthritis that are dated since December 2011.  

2. Clarify, based on the December 2011 SSOC, whether the Veteran's right lower extremity radiculopathy is rated 20 percent throughout the appeal period, or rated 0 percent prior to November 30, 2010, and 20 percent from that date, as reflected in the May 2011 rating decision.  

3. Schedule the Veteran for an examination to determine the current nature and severity of his right lower extremity radiculopathy.  The claims file should be made available to and reviewed by the examiner.  Any tests or studies deemed necessary should be performed.  The examiner should identify all pathology found to be present, including the Veteran's account of symptomatology.  If possible, the severity of the radiculopathy of the right lower extremity should be described as mild, moderate, moderately severe, or severe.  

A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report.  

4. Then readjudicate the issues on appeal.  If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a SSOC, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  

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 2014).



______________________________________________
M. N. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs