Citation Nr: 18160718 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 12-03 358 DATE: December 27, 2018 REMANDED Whether the Veteran timely perfected an appeal as to the denial of her claim for an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder is remanded. Entitlement to an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 1984 to October 1984 and from August 1990 to May 1991. In April 2016, the Veteran testified at a hearing before the undersigned as to her application to reopen a claim of service connection for a skin disorder. In a subsequent February 2017 descision, the Board of Veterans’ Appeal (Board) denied this claim. Also in February 2017, the Board remanded the claim for an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder for the issuance of a statement of the case (SOC). As will be explained below, the Board has characterized the issues on appeal as they appear above. The Timeliness of the Appeal Claim As noted in the February 2017 Board remand, in December 2016 the Veteran filed a notice of disagreement as to the January 2016 rating decision that granted her service connection for a major depressive disorder effective October 20, 2009. The post-remand record thereafter shows that in August 2017 the agency of original jurisdiction (AOJ) issued the Veteran a SOC as to this earlier effective date claim. However, the record does not show that the Veteran or her representative thereafter filed with the Veterans' Administration (VA) any writing that could act as a Substantive Appeal as to the earlier effective date claim until November 2018; over a year after the time to perfect her appeal had run. See 38 C.F.R. § 20.302(b) (To be considered timely, the Substantive Appeal must be filed within 60 days from the date that the AOJ mails the SOC 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). Despite the above procedural shortfall, in July 2018 the AOJ nonetheless certified the underlying earlier effective date claim to the Board. But see Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that, after filing a timely notice of disagreement, the filing of a timely Substance Appeal may not be needed to perfect an appeal). Tellingly, the record does not show that the AOJ has adjudicated this new timeliness question. The record also does not show that the Veteran has been provided notice of the laws and regulations governing this question, notice of the need to submit evidence or argument on the question, given an opportunity to actually submit such evidence and argument on this question, and the SOC did not fulfills its’ regulatory requirements because it did not address this question. See 38 C.F.R. § 19.29. Therefore, the Board finds that the question of whether the Veteran timely perfected an appeal as to the denial of her claim for an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder must be remanded to avoid prejudice to the appellant. See 38 C.F.R. § 19.9; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Underlying Earlier Effective Date Claim As to the claim for an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder, the Board finds that it must be remanded because its adjudication is inextricably intertwined with the above procedural question. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). These matters are REMANDED for the following actions: 1. Provide the Veteran with notice of the laws and regulations governing timely perfecting an appeal. (Continued on the next page)   2. After giving the Veteran a reasonable time to submit evidence and/or argument in support of her claim, adjudicate the question whether she timely perfected an appeal as to the denial of her claim for an effective date before October 20, 2009, for the grant of service connection for a major depressive disorder. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel