Citation Nr: 1601371 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 11-32 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the June 2, 2008, substantive appeal concerning service connection for obstructive sleep apnea (OSA) was timely. 2. Entitlement to an effective date earlier than June 2, 2008, for the grant of service connection for OSA. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to March 1986, from November 1990 to April 1991, and from January 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia granted service connection for OSA effective June 2, 2008. The Veteran appealed this effective date. In October 2015, he testified at a hearing before the undersigned. Review of his claims file reveals that a REMAND of this single-issue matter for additional development is warranted. Whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely is addressed herein for a limited purpose. The Board does not have jurisdiction over this issue, but a REMAND for further development is warranted. REMAND Although the delay entailed by a remand is regrettable, a Board decision concerning the claim for an earlier effective date for the grant of service connection for OSA at this time would be premature. Undertaking further development prior to such a decision is the only way to afford him every possible consideration. The Board currently does not have jurisdiction to make a decision regarding whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely as the issue is not on appeal. However, further development is required with respect to it because ensuring that proper procedure is followed is essential. I. Whether the June 2, 2008, Substantive Appeal Concerning Service Connection for OSA was Timely An appeal begins with a notice of disagreement (NOD), a written communication expressing dissatisfaction with and a desire to contest a determination. 38 U.S.C.A. § 7105(b)(2) (West 2014); 38 C.F.R. § 20.201 (2015); Anderson v. Principi, 18 Vet. App. 371 (2004). A NOD must be filed within one year from the date notice of the determination was mailed. 38 U.S.C.A. § 7105(b)(1) (West 2014); 38 C.F.R. § 20.302(a) (2015). Upon the filing of a timely NOD, a SOC shall be issued. 38 U.S.C.A. § 7105(d)(1) (West 2014); 38 C.F.R. § 19.29 (2015). The Board shall remand for issuance of a SOC if one has not been issued. Manlincon v. West, 12 Vet. App. 238 (1999). Indeed, a SOC is required because filing a timely substantive appeal (9 form) in response thereto perfects the appeal. 38 U.S.C.A. §§ 7105(a, (d)(3)) (West 2014); 38 C.F.R. §§ 20.200, 20.202 (2015). In a September 2005 rating decision, the Atlanta RO denied service connection for OSA. The Veteran timely submitted a NOD, and a SOC was issued in June 2007. His substantive appeal was received on June 2, 2008. In a November 2008 letter decision, the Atlanta RO informed the Veteran that his substantive appeal could not be accepted as such because it was untimely. However, it was accepted as a claim to reopen. It also informed him that he could appeal by explaining his disagreement in writing. A written statement was received from him a few days later. He noted that it was in response to the letter decision, set forth an explanation for why he did not agree that his substantive appeal was untimely, and finally requested that it be accepted. The statement thus qualifies as a timely NOD. There is no indication that the RO has issued an SOC yet addressing whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely. This must be done. II Effective Date Earlier than June 2, 2008, for the Grant of Service Connection for OSA Issues are inextricably intertwined when a determination on one could have a significant impact on the outcome of the other. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the impacted issue should be deferred until the issue that may cause the impact has been adjudicated. Id. Adjudication of the Veteran's entitlement to an effective date earlier than June 2, 2008, for the grant of service connection for OSA cannot be fully informed until after adjudication of whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely. Indeed, this determination will in turn determine if it should have been accepted as a claim to reopen. The effective date generally cannot be earlier than the date of the claim, whether original or to reopen. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.400(b, q, r) (2015). Whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely, in sum, must be adjudicated with adjudication of the Veteran's entitlement to an effective date earlier than June 2, 2008, for the grant of service connection for OSA deferred until this occurs. Adjudication of this issue also must be deferred until adjudication of the CUE issue raised at the October 2015 hearing-whether the September 2005 rating decision denying service connection for OSA was the product of CUE. The argument of the Veteran's representative at the hearing was that the rating decision was the product of CUE because service connection should have been granted at that time based on the available evidence. If the determination made is that this argument is correct, the effective date for the grant of service connection for OSA will change correspondingly. Given the above, a REMAND is directed for the following: 1. Issue a SOC concerning whether the June 2, 2008, substantive appeal concerning service connection for OSA was timely. Provide a copy of the SOC, along with a notice letter of how to continue the appeals process, to the Veteran and his representative. Place a copy of both in claims file. Return to the Board only if the appeal is timely perfected. 2. After completion of the above and adjudication of whether the September 2005 rating decision denying service connection for OSA was the product of CUE (referred herein), readjudicate the Veteran's entitlement to an effective date earlier than June 2, 2008, for the grant of service connection for OSA. Issue a rating decision if the determination made is favorable to him. Issue a supplemental statement of the case (SSOC) if it is unfavorable to him. Place a copy of the rating decision or SSOC in the claims file. Allow the requisite time period for a response to a SSOC by the Veteran and his representative before returning to the Board. No action is required of the Veteran until he is notified by VA. Yet he is advised that he has the right to submit additional evidence and argument, whether by himself directly or through his representative on his behalf, with respect to the issues addressed in this remand. Kutscherousky v. West, 12 Vet. App. 369 (1999). They must be afforded prompt treatment. Indeed, all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). This remand is in the nature of a preliminary order and does not constitute a decision by the Board. 38 C.F.R. § 20.1100(b) (2015).