Citation Nr: 1751828	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  13-09 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether a timely substantive appeal was received in response to the October 2010 statement of the case.  

2.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disability.  

3.  Entitlement to service connection for a left knee disability.  

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

5.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right shoulder disability.  

6.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a cervical spine disability.  



REPRESENTATION

Appellant represented by:	Jade D. Dodds, Attorney


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1980 to June 1994.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee.  

This appeal was remanded by the Board in January 2014 in order to afford the Veteran his requested hearing before a Veterans Law Judge.  Subsequently, in an August 2016 written statement, the Veteran withdrew his Board hearing request.  

The issues of whether new and material evidence has been submitted to reopen claims for the right knee, right shoulder and cervical spine and entitlement to service connection for disabilities of the left knee, and right wrist are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a March 2010 rating decision, the Veteran was denied service connection for disabilities of the bilateral knees, right wrist, cervical spine, and right shoulder.  

2.  The Veteran filed a May 2010 notice of disagreement regarding the March 2010 rating decision.  

3.  The Veteran was sent an October 2010 statement of the case regarding his service connection claims.  

4.  The Veteran has demonstrated good cause for his failure to file a timely VA Form 9 or substantive appeal.  


CONCLUSION OF LAW

The Veteran has properly perfected his appeal of the issues of service connection for disabilities of the right shoulder, right wrist, bilateral knees, and cervical spine.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 19.34, 20.302 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a March 2010 rating decision, the Veteran was denied service connection for disabilities of the bilateral knees, right wrist, cervical spine, and right shoulder.  He responded with a notice of disagreement regarding all these issues.  This notice of disagreement was received by VA in May 2010.  In October 2010, he was sent a statement of the case regarding these issues.  Subsequently, the RO determined in August 2011 that the Veteran had failed to respond to the statement of the case in a timely manner, and closed out the appeal for failure to file a timely VA Form 9 or substantive appeal.  The Veteran contests this determination.  

Under VA regulations, an appeal consists of a timely filed written notice of disagreement and, after a statement of the case 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 or correspondence containing the necessary information.  38 C.F.R. § 20.202.  A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  The date of mailing of the statement of the case will be presumed to be the same as the date of the statement of the case 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 period for filing a substantive appeal may be granted for good cause.  38 C.F.R. § 20.303.  However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal.  Id.  A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed.  In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA.  38 C.F.R. § 20.305.  

The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case 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 statement of the case, 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).  Finally, the U.S. Court of Appeals for Veterans Claims (Court) has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

In the present case, the Veteran failed to file a VA Form 9 or any document which may be considered by VA as a substantive appeal within either 60 days of issuance of the October 2010 statement of the case, or within a year of the March 2010 rating decision on appeal.  For the reasons to be discussed below, however, the Board finds good cause for this lapse, and his appeal of the underlying issues is found to have been perfected.  

According to the Veteran's contentions, at the time he initially filed his service connection claims in 2009, he was essentially homeless, living with friends and/or in shelters.  He had his mail sent to a local soup kitchen and homeless shelter which, at the time, accepted mail on behalf of the homeless population until they were able to retrieve it.  Sometime in late 2010, however, this organization changed its policy, and began returning mail to the sender.  The Veteran asserts this is what happened to the October 2010 statement of the case, and he did not become aware of this change until 2011.  As a result, the Veteran contends, he never received the October 2010 statement of the case and was unaware that it had been returned to VA by the homeless shelter.  

Upon review of the record, the Board notes that the Veteran never abandoned his claims, contacting VA on several occasions in 2011 regarding the status of his appeal and enlisting the assistance of a private attorney to assist in his appeal.  He stated in 2011 that he had not received his statement of the case, and upon learning his mail had been returned, provided VA with an updated address in May 2011 and later filed a VA Form 9.  The Board finds these assertions to be credible.  As such, the Board determines the Veteran, given his housing situation, made good faith efforts to make VA aware of his whereabouts and to continue his appeal.  

Therefore, based on the above, the timeliness requirement for the filing of the VA Form 9 is waived, and the Board finds the Veteran has properly perfected his appeal of the service connection claims for disabilities of the bilateral knees, right wrist, cervical spine, and right shoulder.  See Percy, 23 Vet. App. at 45.  


ORDER

The appeal is granted as to the question of whether a timely substantive appeal was received following the October 2010 statement of the case.  




REMAND

The Board having determined the Veteran has perfected his appeals of the March 2010 denials of service connection for disabilities of the right shoulder, right wrist, bilateral knees, and cervical spine, these issues may be considered on the merits.  Review of the record, however, does not indicate adjudication of these issues is proper at this time.  

First, the Veteran has stated he is in receipt of VA medical and other services.  In developing his claim, the agency of original jurisdiction (AOJ) did request and obtain VA treatment records from the Chattanooga VA Outpatient Clinic; however, the most recent such request was made in October 2009, over 8 years ago.  VA has a duty to assist a claimant in obtaining VA and other governmental treatment records.  See 38 U.S.C.A. § 5103A.  As such, remand is required in order to obtain any additional VA treatment records available for this Veteran, as he has reported such treatment since that time.  

The Board notes that, upon review of the service treatment records, the Veteran did receive treatment in service for several of the disabilities for which he has now claimed service connection.  In July 1980, the Veteran reported right shoulder pain following a fall.  In December 1985, he reported right knee pain, and a strained right knee was diagnosed.  The Veteran reported left knee pain in February 1986.  The Veteran was also awarded the Parachutist Badge, indicating his participation in airborne training during active duty service.  Review of the record, however, does not indicate the Veteran has been afforded any recent VA examinations and/or opinions regarding his claimed disabilities, or that no such examination reports are of record.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, the Board must consider: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

The Court has stated that the third element establishes a low threshold and requires only that the evidence indicates that there may be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As such, the AOJ must, after all evidentiary development is completed, review the record and determine if a VA examination and/or opinion is required.  If so, such development must be afforded the Veteran.  

Accordingly, the case is REMANDED for the following action:

1. Request any pertinent medical records not already received from the Tennessee Valley Healthcare System, as well as any other VA or private facility at which the Veteran has received pertinent treatment.  If no such records are available, that fact should be noted for the record.  

2.  After undertaking any additional development deemed appropriate, to include affording the Veteran VA medical examinations and/or opinions if required based on any additional evidence added to the record, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.  

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs