Citation Nr: 18158410 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-43 572 DATE: December 14, 2018 ORDER Entitlement to service connection for sinusitis is denied. The substantive appeal on the issues of entitlement to a compensable initial rating for migraine headaches and entitlement to service connection for allergic rhinitis and hypertension, filed on December 16, 2017, was not timely, and the appeal is denied. FINDINGS OF FACT 1. Sinusitis did not manifest during service and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The Veteran’s substantive appeal regarding the issues of entitlement to a compensable initial rating for migraine headaches and entitlement to service connection for allergic rhinitis and hypertension, filed on December 16, 2017, was not filed within 60 days of the issuance of the statement of the case on January 26, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 2. A substantive appeal regarding the issues of entitlement to a compensable initial rating for migraine headaches and entitlement to service connection for allergic rhinitis and hypertension was not timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.300, 20.302(b), 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from April 1977 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of March and October 2014 rating decisions. 1. Entitlement to service connection for sinusitis To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). The Veteran’s service treatment records show that in February 1978, he complained of having the flu for two days. He had a runny nose, sore throat, high fever, cough, watery eyes and a headache. He was noted to have a possible sinus cold. An October 2012 VA sinusitis and rhinitis examination revealed no diagnosis of sinusitis. In an October 2012 letter, Dr. R. P. V. reported that the Veteran suffered from chronic sinusitis along with other several other medical conditions. Further VA sinusitis and rhinitis examination was conducted in October 2014. At that examination, the Veteran was diagnosed with chronic sinusitis with a date of diagnosis of 2004. The VA examiner opined that the condition was less likely than not related to his February 1978 treatment during service. The examiner noted that the Veteran was evaluated for flu signs and symptoms for two days and the assessment was that of a sinus cold, which was treated and resolved without any complications or sequelae. The examiner further noted that the service treatment records do not show evidence of recurrent signs or symptoms of chronic sinusitis during active miliary service. As noted above, the Veteran has been diagnosed as having chronic sinusitis. However, the evidence does not support a finding that he experienced an in-service injury, disease or event to which the disorder could plausibly be related. The Board affords the VA examiner’s negative nexus opinion, supported by a well detailed rationale great probative weight. While the examiner acknowledged the Veteran’s treatment for flu related symptoms during service, the examiner clearly noted that the Veteran’s current chronic sinusitis is not etiologically related to his inservice treatment. While the Veteran’s private physician, Dr. R. P. V. related treating the Veteran for sinusitis, a nexus statement was not provided. There is no contradictory medical opinion of record. As the preponderance of evidence is against the claim, the appeal as to service connection for sinusitis must be denied. 2. Timeliness of appeal on the issues of entitlement to a compensable initial rating for migraine headaches and entitlement to service connection for allergic rhinitis and hypertension, filed on December 16, 2017 The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.4, 20.101. The decision as to the timeliness and adequacy of a substantive appeal will be made by the Board. 38 U.S.C. § 7108; 38 C.F.R. § 20.101(c), (d). Under VA regulations, an appeal consists of a timely filed written notice of disagreement (NOD) and, after a statement of the case (SOC) 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, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. The “necessary information” consists of specific arguments relating to errors of facts or law made by the AOJ in reaching the determination being appealed, and the arguments made are to be construed liberally. Id. The substantive appeal must be filed within 60 days from the date that notification of an SOC is sent to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC, 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. § 7105(d); 38 C.F.R. § 20.302(b). An October 2014 rating decision granted service connection for migraine headaches and assigned a noncompensable rating and denied service connection for hypertension and rhinitis. In December 2014, the Veteran submitted a notice of disagreement with the initial rating assigned for migraine headaches and for the denial of service connection for hypertension and rhinitis. On January 26, 2017, the RO issued a SOC and mailed a copy of the SOC to the Veteran’s address of record. The SOC notified the Veteran that he had sixty days from the date of the SOC to file a substantive appeal, and included a blank VA Form 9. However, VA did not receive the Veteran’s substantive appeal, via a VA Form 9, until December 16, 2017, more than sixty days after issuance of the SOC on January 26, 2017. A substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). However, in this case, the Veteran’s substantive appeal was determined to be untimely by the RO. The RO then provided notice and an explanation to the Veteran of its determination in a December 2017 letter, and subsequently in a May 2018 SOC. Thus, VA has not taken action indicating to the Veteran that the substantive appeal was timely. Additionally, there are no other circumstances which would persuade the Board that the timeliness of the substantive appeal should be waived in this case. The Veteran has not presented evidence that he attempted to file the substantive appeal prior to the expiration of the time period, and has not otherwise provided good cause as to why a substantive appeal was not timely filed. Therefore, a waiver of timeliness in the filing of a substantive appeal is not warranted in this case. The Veteran’s substantive appeal received by VA on December 16, 2017, was not timely filed and the appeal is denied. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel