Citation Nr: 18146889 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-27 504A DATE: November 1, 2018 ORDER Entitlement to service connection for arthritis of the knuckles is dismissed. Entitlement to service connection for left hip arthritis is dismissed. Entitlement to service connection for right hip arthritis is dismissed. Entitlement to service connection for left leg arthritis is dismissed. Entitlement to service connection for right leg arthritis is dismissed. Entitlement to service connection for arthritis of the spine/back is dismissed. Entitlement to service connection for tinnitus is dismissed. REMANDED Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for arthritis of the knuckles following the issuance of the June 2015 Statement of the Case. 2. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for left hip arthritis following the issuance of the June 2015 Statement of the Case. 3. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for right hip arthritis following the issuance of the June 2015 Statement of the Case. 4. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for left leg arthritis following the issuance of the June 2015 Statement of the Case. 5. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for right leg arthritis following the issuance of the June 2015 Statement of the Case. 6. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for arthritis of the spine/back following the issuance of the June 2015 Statement of the Case. 7. The Veteran did not submit a substantive appeal nor indicate a desire to continue his appeal for service connection for tinnitus following the issuance of the June 2015 Statement of the Case. CONCLUSIONS OF LAW 1. The Veteran’s claim for service connection for arthritis of the knuckles is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 2. The Veteran’s claim for service connection for left hip arthritis is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 3. The Veteran’s claim for service connection for right hip arthritis is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 4. The Veteran’s claim for service connection for left leg arthritis is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 5. The Veteran’s claim for service connection for right leg arthritis is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 6. The Veteran’s claim for service connection for arthritis of the spine/back is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 7. The Veteran’s claim for service connection for tinnitus is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. 1. Entitlement to service connection for arthritis of the knuckles; and 2. Entitlement to service connection for left hip arthritis; and 3. Entitlement to service connection for right hip arthritis; and 4. Entitlement to service connection for left leg arthritis; and 5. Entitlement to service connection for right leg arthritis; and 6. Entitlement to service connection for arthritis of the spine/back; and 7. Entitlement to service connection for tinnitus are dismissed. The Veteran’s claims for service connection for arthritis of the knuckles, left hip arthritis, right hip arthritis, left leg arthritis, right leg arthritis, arthritis of the spine, and tinnitus must be dismissed because following the issuance of a June 2015 Statement of the Case (SOC), a substantive appeal, in the form of an Appeal to the Board of Veterans’ Appeals (VA Form 9) or other communication, was not submitted. Here, the Veteran’s claims were denied in an August 2013 rating decision. He was notified of this decision and of his appellate rights by letter dated August 16, 2013. The Veteran submitted a timely notice of disagreement (NOD) in May 2014. See 38 C.F.R. § 20.201. As noted, in June 2015 the RO issued the Veteran an SOC concerning his claims, mailed on July 3, 2015. To perfect an appeal, a substantive appeal must be filed within 60 days from the date VA mails a claimant an SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later). 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness regarding a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). On the other hand, because a timely filed substantive appeal is not a jurisdictional bar to Board review, the Board cannot raise a timeliness objection if the Veteran filed an untimely substantive appeal and VA had, nonetheless, treated the Veteran’s claim as timely appealed for a number of years and certified the issue to the Board, and thereafter the Board identified the issue at a hearing and took testimony on the issue. See id. at 45. In June 2015, VA mailed the Veteran a SOC pertaining to his claims for service connection for arthritis of the knuckles, left hip arthritis, right hip arthritis, left leg arthritis, right leg arthritis, arthritis of the spine/back, and tinnitus. Importantly, since receipt of the June 2015 SOC, the Veteran has not filed a substantive appeal or expressed any intent to continue his claims for service connection. Unlike the situation in Percy, this is not a case where an untimely appeal was filed; and, in fact, a substantive appeal has not been filed concerning the Veteran’s claims for service connection. In sum, this is not a situation where the timely filing of a substantive appeal may be waived. Simply stated, a substantive appeal was not filed as to the Veteran’s claims for service connection for arthritis of the knuckles, left hip arthritis, right hip arthritis, left leg arthritis, right leg arthritis, arthritis of the spine/back, and tinnitus. Thus, the Veteran’s claims for service connection are not presently on appeal and within the Board’s jurisdiction to further review, and these claims must be dismissed. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302; Percy, 23 Vet. App. at 45. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. The Veteran submitted a Notice of Disagreement (NOD) in June 2016 expressing his disagreement with the June 2015 rating decision that assigned a 50 percent disability rating for PTSD, effective September 7, 2011. See June 2015 rating decision, mailed on July 3, 2015. Here, the Veteran’s NOD was timely as it was received by VA less than one year after issuance of the June 2015 rating decision to which it pertains. See 38 C.F.R. § 20.302(a) (discussing time limits for filing NODs). Although the Veteran initiated appellate review of the issue, VA has not addressed his contentions concerning this in a Statement of the Case (SOC). When a timely NOD has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, because no subsequent SOC has been issued with respect to the claim for an initial disability rating in excess of 50 percent for PTSD, a remand is required. In this regard, it is noteworthy that this claim is not before the Board and will only be before the Board if the Veteran files a timely substantive appeal. The Board’s action regarding this issue is taken to fulfill the requirements of the Court in Manlincon. The matter is REMANDED for the following action: 1. Issue a Statement of the Case (SOC) to the Veteran addressing the matter of an initial disability rating in excess of 50 percent for PTSD. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). 2. Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel