Citation Nr: 1636902 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 14-14 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for corns and callosities with hammer toes of the left foot. 2. Entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for corns and callosities with hammer toes of the right foot. 3. Entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for peripheral neuropathy of the left upper extremity. 4. Entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to an effective date earlier than May 16, 2003 for the grant of service connection for posttraumatic stress disorder (PTSD), to include insomnia, flashbacks, and headaches. 6. Entitlement to an effective date earlier than November 1, 2010 for the grant of special monthly compensation (SMC) based on the need for regular aid and attendance of another person. 7. Entitlement to service connection for Bell's palsy. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for diabetic retinopathy. 10. Entitlement to service connection for renal failure. 11. Entitlement to service connection for prostate hypertrophy. 12. Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the left upper extremity. 13. Entitlement to an initial rating higher than 10 percent for peripheral neuropathy of the left lower extremity. 14. Entitlement to an initial rating higher than 10 percent for corns and callosities with hammer toes of the left foot. 15. Entitlement to an initial rating higher than 10 percent for corns and callosities with hammer toes of the right foot. 16. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus. 17. Entitlement to a higher level of special monthly compensation (SMC). (The issue of entitlement to payment of attorney fees from past-due benefits is the subject of a separate decision by the Board.) REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to October 1973. He received the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from June 2012 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2016, the Board sent the Veteran a letter which informed him that it was necessary for the Board to determine whether it has jurisdiction to address the issues of entitlement to earlier effective dates and higher initial ratings for corns and callosities with hammer toes of the left and right foot and peripheral neuropathy of the left upper and left lower extremities, entitlement to an earlier effective date for the grant of SMC, entitlement to service connection for Bell's palsy, hypertension, diabetic retinopathy, renal failure, and prostate hypertrophy, entitlement to an increased rating for diabetes mellitus, and entitlement to a higher rate of SMC. Specifically, it is necessary for the Board to determine whether a timely substantive appeal was received with respect to these issues. The June 2016 letter further notified the Veteran of the pertinent laws and regulations pertaining to substantive appeals, of the timing requirements for the filing of a substantive appeal, and that the Board's consideration of this matter could result in dismissal of his appeal as to these issues. Lastly, the letter offered the Veteran the opportunity to present additional written evidence and argument pertaining to this matter and the opportunity for a Board hearing. A copy of this letter was also sent to his representative. The Veteran responded to the June 2016 letter in July 2016 and indicated that he did not wish to have a hearing scheduled. Also, neither he nor his representative have offered any additional evidence or argument pertaining to the Board's jurisdiction over the matters set forth above. Hence, the Board will proceed to a decision on this matter. The issue of entitlement to an earlier effective date for the grant of service connection for PTSD, to include insomnia, flashbacks, and headaches, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In rating decisions dated in June 2012, the RO made the following determinations: granted service connection for corns and callosities with hammer toes of the left and right foot and assigned initial 10 percent disability ratings, both effective from November 1, 2010; granted service connection for peripheral neuropathy of the left upper extremity and assigned an initial 20 percent disability rating, effective from November 1, 2010; granted service connection for peripheral neuropathy of the left lower extremity and assigned an initial 10 percent disability rating, effective from November 1, 2010; denied entitlement to a rating in excess of 20 percent for type II diabetes mellitus; granted SMC based on the need for regular aid and attendance of another person, effective from November 1, 2010; and denied entitlement to service connection for Bell's palsy, hypertension, diabetic retinopathy, renal failure, and prostate hypertrophy; the Veteran was notified of this decision in June 2012. 2. In September 2012, the Veteran filed a notice of disagreement (NOD) with the June 2012 decisions and expressed disagreement as to the effective dates and initial ratings assigned for corns and callosities with hammer toes of the left and right foot and peripheral neuropathy of the left upper and left lower extremities, the effective date and rate assigned for SMC, the denial of an increased rating for type II diabetes mellitus, and the denial of service connection for Bell's palsy, hypertension, diabetic retinopathy, renal failure, and prostate hypertrophy. 3. A statement of the case (SOC) was issued to the Veteran on February 25, 2014. 4. A substantive appeal was not received by VA within either one year of notification of the June 2012 rating decisions or within 60 days of the issuance of the February 2014 SOC which addresses the effective date, service connection, and higher rating issues. CONCLUSION OF LAW The June 2012 rating decisions are final because a timely substantive appeal was not filed. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.109, 19.35, 20.101(d), 20.200, 20.201, 20.202, 20.302 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The timeliness and adequacy of a substantive appeal is a jurisdictional matter and is governed by the interpretation of law. In such a case, the VCAA has no application. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Analysis In order for the Board to have jurisdiction to review an RO decision, there must be a timely substantive appeal. A timely substantive appeal initially requires that a written NOD be filed within one year after the date of notice of the RO decision. Next, the RO must issue an SOC on the matter(s) being appealed. Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board. A timely substantive appeal is one filed in writing, within 60 days of the date of notice of the SOC, or within the remainder of the one-year period of the date of notice of the RO decision being appealed, whichever is later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. The Board has the authority to determine whether it has jurisdiction to review a matter, and may dismiss any matter over which it does not have jurisdiction. 38 U.S.C.A. § 7105 (d) (3); 38 C.F.R. § 20.101 (d). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32 (2015)), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C.A. § 7105 (d); 38 C.F.R. § 20.101 (d). Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of good cause. However, the United States Court of Appeals for Veterans Claims (Court) has held that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109 (b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231 (1992). Specifically, 38 C.F.R. § 3.109 (b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner. Thus, a claimant who fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996). In rating decisions dated in June 2012, the RO made the following determinations: granted service connection for corns and callosities with hammer toes of the left and right foot and assigned initial 10 percent disability ratings, both effective from November 1, 2010; granted service connection for peripheral neuropathy of the left upper extremity and assigned an initial 20 percent disability rating, effective from November 1, 2010; granted service connection for peripheral neuropathy of the left lower extremity and assigned an initial 10 percent disability rating, effective from November 1, 2010; denied entitlement to a rating in excess of 20 percent for type II diabetes mellitus; granted SMC based on the need for regular aid and attendance of another person, effective from November 1, 2010; and denied entitlement to service connection for Bell's palsy, hypertension, diabetic retinopathy, renal failure, and prostate hypertrophy. The Veteran was notified of this decision later that same month. He filed an NOD in September 2012 as to the effective dates and initial ratings assigned for corns and callosities with hammer toes of the left and right foot and peripheral neuropathy of the left upper and left lower extremities, the effective date and rate assigned for SMC, the denial of an increased rating for type II diabetes mellitus, and the denial of service connection for Bell's palsy, hypertension, diabetic retinopathy, renal failure, and prostate hypertrophy. An SOC was sent to the Veteran on February 25, 2014. He was informed in the SOC that he must file his appeal 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 him of the action that he appealed. A substantive appeal has never been received with respect to the effective date, higher rating, and service connection issues addressed in the February 2014 SOC. The Veteran's representative did submit a statement in March 2014 which he requested be accepted as a "VA 9 Appeal." This statement, however, indicated that it was in response to an SOC "dated February 26, 2014" which only pertains to the "issue of entitlement to attorney fees based on a June 25, 2012 decision that awarded [SMC] based on the need for aid and attendance." The attorney fee issue referenced in the March 2014 statement is properly before the Board and will be addressed in a separate decision. There are three possible exceptions to the finality rule in this case. First, the filing limit could be tolled with a timely request for an extension of time to submit a substantive appeal under 38 C.F.R. § 20.302 or an extension of the filing deadline under 38 C.F.R. § 3.109. However, no timely request for an extension of the filing deadline is of record. Second, some RO and Board actions may operate as a waiver of the time requirements for filing a substantive appeal. See Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that a claimant's failure to file a timely substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32); see also Percy v. Shinseki, 23 Vet. App. 37 (2009). However, this exception is not applicable because there is no evidence that the RO formally or informally waived the time requirements for filing a substantive appeal. VA's Veterans Appeals Control and Locator System (VACOLS) reflects that the RO certified the earlier effective date, higher rating, and service connection issues set forth above to the Board in November 2015 (see an undated "Certification of Appeal" form (VA Form 8)). Nevertheless, certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. Neither the RO nor the Board has taken any further action to explicitly suggest to the Veteran that the earlier effective date, higher rating, and service connection issues are on appeal before the Board. Finally, the doctrine of equitable tolling has been considered. Equitable tolling is to be applied to the time limit to file a substantive appeal only when circumstances preclude a timely filing despite the exercise of due diligence, such as a misfiling at the regional office or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). Equitable tolling is not appropriate where the failure to file on time was due to general negligence or procrastination. Id. Principles of equitable tolling do not extend to "garden variety claim[s] of excusable neglect." See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). The United States Court of Appeals for the Federal Circuit has held that equitable tolling applies when a claimant shows (1) an extraordinary circumstance; (2) that the extraordinary circumstance caused an inability to file during the requested tolling period; and (3) that there was diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). If shown, the "clock stops" and the requested period is not counted against the time period for filing. Id. In this case, the record does not reflect, and there has been no contention, that any extraordinary circumstance(s) precluded the Veteran from filing a timely substantive appeal with respect to the effective date, higher rating, and service connection matters addressed herein. As such, the Board finds no basis for equitable tolling of the filing deadline. In sum, the Board finds that the Veteran did not file a substantive appeal discussing errors of fact or law with regard to the June 2012 rating decisions within the appeal period, did not timely request an extension of time to do so, and did not show good cause for failure to timely appeal. The RO did not waive timely filing of a substantive appeal, there is no showing of any extraordinary circumstance(s) so as to warrant equitable tolling of the filing deadline, and VA has not taken any action to suggest to the Veteran that the issues decided in the June 2012 rating decisions are on appeal before the Board. Therefore, the Board must find that the Veteran did not perfect a timely appeal, and this appeal must be dismissed. ORDER The appeal as to the issue of entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for corns and callosities with hammer toes of the left foot is dismissed. The appeal as to the issue of entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for corns and callosities with hammer toes of the right foot is dismissed. The appeal as to the issue of entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for peripheral neuropathy of the left upper extremity is dismissed. The appeal as to the issue of entitlement to an effective date earlier than November 1, 2010 for the grant of service connection for peripheral neuropathy of the left lower extremity is dismissed. The appeal as to the issue of entitlement to an effective date earlier than November 1, 2010 for the grant of SMC based on the need for regular aid and attendance of another person is dismissed. The appeal as to the issue of entitlement to service connection for Bell's palsy is dismissed. The appeal as to the issue of entitlement to service connection for hypertension is dismissed. The appeal as to the issue of entitlement to service connection for diabetic retinopathy is dismissed. The appeal as to the issue of entitlement to service connection for renal failure is dismissed. The appeal as to the issue of entitlement to service connection for prostate hypertrophy is dismissed. The appeal as to the issue of entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the left upper extremity is dismissed. The appeal as to the issue of entitlement to an initial rating higher than 10 percent for peripheral neuropathy of the left lower extremity is dismissed. The appeal as to the issue of entitlement to an initial rating higher than 10 percent for corns and callosities with hammer toes of the left foot is dismissed. The appeal as to the issue of entitlement to an initial rating higher than 10 percent for corns and callosities with hammer toes of the right foot is dismissed. The appeal as to the issue of entitlement to a rating in excess of 20 percent for type II diabetes mellitus is dismissed. The appeal as to the issue of entitlement to a higher level of SMC is dismissed. REMAND In an April 2010 rating decision, the Appeals Management Center granted service connection for PTSD, to include insomnia, flashbacks, and headaches, effective from March 31, 2005. The Veteran was notified of this decision by way of a letter dated on June 22, 2010. In June 2011, the Veteran's representative submitted an NOD with respect to the initial rating and effective date assigned in the April 2010 decision. A Decision Review Officer subsequently assigned an effective date of May 16, 2003 for the grant of service connection for PTSD by way of a February 2014 decision and an SOC was issued in February 2014 which addresses the issue of entitlement to a higher initial rating for PTSD. Nevertheless, an SOC has not been issued as to the matter of entitlement to an earlier effective date for the grant of service connection for PTSD. 38 U.S.C.A. § 7105 (a) (West 2014). Thus, the Board is required to remand this matter for issuance of the necessary SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue an SOC as to the matter of entitlement to an earlier effective date for the grant of service connection for PTSD, to include insomnia, flashbacks, and headaches. This issue shall not be certified to the Board unless a timely substantive appeal is submitted. 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 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs