Citation Nr: 18155095 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-43 824 DATE: December 3, 2018 ORDER A timely substantive appeal was submitted with the March 2014 rating decision that reopened and denied the claims of entitlement to service connection for diabetes mellitus (DM) and chronic lymphocytic leukemia (CLL), and to this extent only, the claim is granted. REMANDED Entitlement to service connection for DM is remanded. Entitlement to service connection for CLL is remanded. FINDINGS OF FACT 1. By a March 2014 rating decision, the RO reopened and denied the claims of entitlement to service-connection for DM and CLL. 2. In May 2014, the Veteran filed a timely notice of disagreement (NOD) with these claims. 3. A statement of the case (SOC) on the issues was issued in August 2015. 4. A VA form 9, Appeal to Board of Veterans’ Appeals, dated September 29, 2015, was received at the RO as to these issues and date stamped February 9, 2016. CONCLUSION OF LAW The criteria for a timely substantive appeal of the March 2014 rating decision that reopened and denied the claims of entitlement to service-connection for DM and CLL, have been met. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302, 20.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from April 1966 to February 1970. He appeals the RO determination that he did not timely appeal a March 2014 rating decision that reopened and denied the claims of entitlement to service-connection for DM and CLL. In June 2018, he provided testimony on this matter before the undersigned Veteran’s Law Judge. At that time, he also presented additional documentary evidence in support of this timeliness issue. Timeliness of Substantive Appeal An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely 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. If an SOC addresses several issues, the appeal must either indicate that it is being perfected as to all issues or must specifically identify the issues appealed. 38 C.F.R. § 20.202. A veteran may request an extension of the 60-day period for filing a Substantive Appeal for good cause. The request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the Substantive Appeal. 38 C.F.R. §§ 20.202, 20.303. The Veteran contends that he submitted a timely substantive appeal on the two issues denied in the March 2014 rating decision. He specifically maintains he submitted his VA form 9 to his U.S. senator’s office on September 29, 2015, with the understanding that they would assist him with his claim and forward the form 9 on to the VA on his behalf in a timely manner with regard to the August 31, 2015 SOC. A representative from the senator’s office has provided an explanation consistent with that assertion. The May 2018 letter to VA from the senator’s office described the timeline of events and their office procedure for submitting documents on behalf of constituents as follows: Sequence of Events: September 25,2015: [The Veteran] submits a privacy release form authoring Senator [H]’s office to inquire on his behalf. September 29, 2015:VA Form 9 submitted to Senator [H]’s office. September 29, 2015: [The Veteran]’s VA Form 9 sent to the Department of Veterans Affairs through Intranet Quorum (IQ) case management software. The normal operating procedure at the time was to submit all correspondence through the Office of Congressional and Legislative Affairs at the Department of Veterans Affairs. Through staff training and experience, we have since modified our procedure so that all documents related to a veteran’s claim are submitted to the Claims Intake Center in Janesville, Wisconsin. We ask that the Board strongly consider that [the Veteran] did submit his VA Form 9 within the required timeline with full expectation that Senator [H]’s office would forward the form to the Department of Veterans Affairs. We also request the Board consider that the form was submitted through case management software and there were no indications that the forms did not get received by the Office of Congressional and Legislative Affairs. It is uncontroverted that the Veteran had filed a valid and timely NOD to the March 2014 rating decision, the RO issued an SOC on August 31, 2015, and the Veteran's VA Form 9 substantive appeal was noted as received at VA on February 9, 2016, more than 60 days after the SOC was issued and over a year from notice of the rating decision. A review of the record, however, shows that the circumstances of this case are such that the Veteran's Form 9 substantive appeal was timely filed. Specifically, the May 2018 detailed explanation from the senator’s office coupled with the copy of the VA form 9 dated September 29, 2015, persuades the Board that the form was indeed timely filed, despite the fact that it was not recorded in the VA system until February 9, 2016. There is an approximate balance of positive and negative evidence regarding this material issue, and VA gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). REASONS FOR REMAND The Veteran indicated in his September 2015 VA form 9 that he wanted a Board video hearing as to the two issues on the merits. The June 2018 hearing before the undersigned was solely on the issue of timeliness of the appeal and did not satisfy this request. While the Board does not generally remand claims for hearing clarification, under the circumstances, it should be clarified whether the Veteran still desires a Board video hearing, and, if so, it should be scheduled. Moreover, additional evidence submitted since the August 2015 SOC should be reviewed in the first instance by the RO, and any resultant development should be conducted. See Sprinkle v. Shinseki, 733 F.3d 1180, 1183–84 (Fed. Cir. 2013) (noting that veterans’ claims are initially developed and adjudicated by the RO and reviewed on appeal by the Board, and that, “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance.” Parenthetically, the Board notes that it agrees with the March 2014 Rating decision inasmuch as it reopened the claims of service connection for DM and CLL based on finding of new and material evidence. 38 C.F.R. § 3.159. The claims are reopened. The matters are REMANDED for the following action: 1. Clarify whether the Veteran still wants a Board hearing on these issues. If so, schedule the hearing. 2. Review the evidence in the claims folder and conduct all appropriate development necessary to fulfill VA’s duty to assist the Veteran. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL