Citation Nr: 1802589 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-33 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the right knee. 2. Entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the left knee. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to April 1988, August 1996 to March 1997, August 2002 to August 2003, and from March 2009 to April 2010. The Veteran also has extensive Reserve and National Guard service with numerous periods of active duty for training purposes (ACDUTRA) and inactive duty. During his active military service, the Veteran was awarded, in pertinent part, the Combat Infantryman Badge (CIB). These initial increased rating claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for patellofemoral pain syndrome of the knees. The RO assigned an initial disability rating of 10 percent for each knee. The Veteran filed a Notice of Disagreement (NOD) in July 2012, appealing the initial disability ratings assigned. These matters were previously before the Board in January 2014, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ promptly issued a SOC in December 2014. Thus, there has been compliance with the Board's January 2014 remand directives and appellate consideration may proceed. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in July 2012, the Veteran testified at a Travel Board hearing conducted by a Veterans Law Judge other than the undersigned, who has since retired from the Board. That hearing addressed other issues that were adjudicated in the January 2014 Board decision, which is now final. 38 C.F.R. § 20.1100 (2017). The July 2012 Travel Board hearing did not address the issues currently before the Board; thus, the provisions of 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707 do not apply. FINDING OF FACT The Veteran did not perfect an appeal of the issues. CONCLUSIONS OF LAW The issue of entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the right knee is not justiciable. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200, 20.202 (2017). The issue of entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the left knee is not justiciable. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200, 20.202 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS At the outset, the Board notes that it has, in connection with the matter decided herein, considered the applicability of VA's duties to notify and assist veterans in the development of their claims. Here, however, because the Board finds that the Veteran did not submit a timely Substantive Appeal of the underlying November 2011 rating decision, there are no justiciable issues on appeal. Thus, VA is not required to take any further action to assist the Veteran. 38 U.S.C. § 5103A(a) (2012); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution is based on statutory interpretation, rather than consideration of factual evidence). Regarding VA's duty to notify, the Veteran was afforded the procedural safeguards of notice and the opportunity to be heard in the December 2014 SOC and its associated correspondence. In the January 2014 remand, the Board, in relevant part, instructed the AOJ to provide the Veteran a SOC relating to the initial increased rating issues noted above. Manlincon, 12 Vet. App. at 240-41. The AOJ was further instructed to notify the Veteran of his appeal rights "and that he must file a timely Substantive Appeal (on VA Form 9) if he desires to perfect the appeal of these claims." Subsequently, the AOJ issued a SOC in December 2014 addressing the initial increased rating claims, with appropriate notice. The Veteran did not file a Substantive Appeal within the required time period; in fact, the Veteran has never filed a Substantive Appeal for these issues. See 38 C.F.R. § 20.302 (2017). Accordingly, these claims are not in appellate status, and are therefore not justiciable. 38 C.F.R. §§ 20.200, 20.202 (2017). Insofar as they have been erroneously certified to the Board by the AOJ, the claims are dismissed. Lastly, the Board recognizes the holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims held that a veteran's failure to timely file a Substantive Appeal does not automatically deprive the Board of jurisdiction over a claim in instances where the actions of the Board lead a veteran to believe an issue is on appeal. However, Percy is not implicated in the present matter, as the Board has not led the Veteran to believe the initial increased rating issues noted above are on appeal. In fact, all of the correspondence in the three years since the SOC has focused on the Veteran requesting an audit of his account and various adjustments due to his continued military drill days. While the Board sent the Veteran an October 2017 letter informing him that the Veterans Law Judge who conducted his July 2012 hearing was no longer available and requesting the Veteran to respond as to whether he wished to have another hearing before a new Veterans Law Judge, this correspondence did not reference the initial increased rating issues noted above, and the Veteran did not respond to this letter. Additionally, the Veteran's representative filed an informal hearing presentation in December 2017 regarding the issue of "entitlement to service connection for bilateral knee condition," which was previously granted in a November 2011 rating decision. Thus, the Veteran has not been misled to believe the initial increased rating issues noted above are on appeal, as even his representative has not recognized the issues as in appellate status or provided any argument to this effect. ORDER Entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the right knee is dismissed. Entitlement to an initial disability rating in excess of 10 percent for the patellofemoral pain syndrome of the left knee is dismissed. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs