Citation Nr: 18114313 Decision Date: 06/27/18 Archive Date: 06/26/18 DOCKET NO. 14-09 356 DATE: June 27, 2018 ORDER The appeal as to whether the Veteran filed a timely substantive appeal (VA Form 9) to a July 2008 rating decision is denied. The request to reopen the claim of service connection for a right wrist disability is granted. The request to reopen the claim of service connection for residuals of right mandible fracture is dismissed. REMANDED Entitlement to service connection for a right wrist disability is remanded. FINDINGS OF FACT 1. The Veteran did not file a VA Form 9 within 60 days of the date on which the October 7, 2009 Statement of the Case (SOC) was sent to him, or within the remainder of the one-year period from the date of the July 25, 2008 letter notifying him of the July 2008 rating decision. 2. The Veteran did not request an extension of time to file his VA Form 9 with good cause shown before the expiration of the period for filing a VA Form 9; the Agency of Original Jurisdiction (AOJ) did not waive the timely filing of a VA Form 9; and, there is no evidence that extraordinary circumstances existed such that equitable tolling of the filing deadline is warranted. 3. The Veteran’s representative of record at the time an October 2009 SOC was issued was The American Legion (AL). However, he requested advice from his prior representative, the State of Tennessee Department of Veterans Affairs (TDVA) (now Tennessee Department of Veterans Services), which is a state department not affiliated with VA, a representative of which provided inaccurate advice as to the deadline to file a VA Form 9 to the October 2009 SOC. 4. A July 2008 rating decision denied service connection for a right wrist disability. Although the Veteran filed a timely notice of disagreement (NOD), he did not file a timely VA Form 9. Therefore, the decision is final. 5. Evidence received since the July 2008 rating decision is relevant and probative as to the issue of service connection for a right wrist disability. 6. The Veteran, through his representative, withdrew his appeal to reopen a claim of service connection for residuals of a right mandibular fracture in an April 2018 written statement. CONCLUSIONS OF LAW 1. A timely VA Form 9 was not filed as to the July 2008 rating decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303 (2017). 2. The July 2008 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. The evidence received since the July 2008 rating decision, which denied service connection for a right wrist disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider the claim of whether new and material has been received to reopen a claim of service connection for residuals of a right mandible fracture. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to December 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 administrative decision and July 2012 rating decision by the Department of Veterans Affairs (VA). In January 2018, the Veteran and his fiancée testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. In April 2018 correspondence, the Veteran’s representative requested another hearing, this time before three Board members. See April 2018 correspondence. The representative gave no reason or legal basis for such request to be granted other than the mere fact that an issue before the Board is regarding the timeliness of a VA Form 9. In certain situations, including where a case is on remand from the Court of Appeals for Veterans Claims (Court), a VA claimant has the right to request and receive a second Board hearing for submitting additional evidence. Cook v. Snyder, 28 Vet. App. 330, 343 (2017). However, in this case, the Veteran is requesting a second hearing at the same stage of the appellate proceedings, merely a few months after the first hearing. There is no evidence that the case has significantly changed or evolved after the January 2018 Board hearing, see id. at 342, and there is no legal basis that a Veteran is entitled to a second hearing merely because the issue on appeal is the timeliness of a VA Form 9. The Court explicitly did not hold that a Veteran is entitled to a second Board hearing “at any time on any issue for any reason[.]” Id. at 345. As such, the Board finds that providing the Veteran with a second Board hearing is neither required nor warranted, and the request is denied. Timely VA Form 9 The duties to notify and assist are not applicable to this issue because resolution of the issue turns on legal interpretation, rather than the evidence. Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Legal Criteria Appellate review is initiated by the filing of a NOD and completed by the filing of a VA Form 9 after an SOC has been issued. A VA Form 9 must be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. An extension of the 60-day period for filing a VA Form 9 may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. See 38 C.F.R. § 20.303. Equitable tolling is to be applied to a time limit when circumstances preclude a timely filing despite the exercise of due diligence, to include reliance on the incorrect statement of a VA official. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). Equitable tolling also applies when a claimant shows: (1) an extraordinary circumstance; (2) that caused an inability to file during the requested tolling period; and, (3) diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). If shown, the “clock stops” and the requested period is not counted against the time-period for filing. Bove, 25 Vet. App. at 140. Equitable tolling is not appropriate where the failure to file on time was due to general negligence or procrastination. Id. Principles of equitable tolling do not extend to “garden variety claim[s] of excusable neglect.” See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Factual Background and Analysis The Veteran has provided the following arguments as to why an October 2010 VA Form 9 should be considered timely: (1) because Henderson v. Shinseki, 562 U.S. 428 (2011), held that the deadline for filing of appeals for administrative actions is not jurisdictional. See October 2011 correspondence. See also June 2017 Board hearing. And, (2) the Veteran relied on the advice of TDVA, which is responsible for the VA Form 9 being submitted late because it provided the wrong legal advice, and therefore equitable estoppel should be applied. See June 2017 Board hearing. A July 2008 rating decision granted and denied service connection for a multitude of issues. See July 2008 rating decision. The Veteran filed a NOD to that rating decision in June 2009. See June 2009 correspondence. In October 2009, the AOJ issued an SOC, with correspondence notifying the Veteran and his representative of his appellant rights dated October 7, 2009. See October 2009 SOC and notification letter. The AOJ issued a simultaneous rating decision in October 2009, with its own letter notifying the Veteran of his appellant rights also mailed on October 7, 2009. See October 2009 rating decision and notification letter. As testified to by the Veteran and his fiancée, the Veteran requested advice from TDVA, stating that he wanted to appeal all the issues in both the SOC and October 2009 rating decision. (The Board acknowledges that the Veteran’s representative of record at the time was AL, see June 2009 VA Form 21-22, but such fact is not dispositive on the current issue because neither TDVA nor AL are affiliated with VA.) TDVA informed him, incorrectly, that he had a full year to appeal all issues decided in the October 2009 rating decision and the October 2009 SOC. The Veteran relied on that advice, and so did not immediately file a VA Form 9. See January 2018 Board hearing. Instead, a VA Form 9 to the October 2009 SOC was first filed on October 15, 2010. See October 2010 VA Form 9. The Veteran does not contest that October 15, 2010 is the date VA first received his VA Form 9 in response to the October 2009 SOC. See January 2018 Board hearing. In a January 2011 administrative decision, VA informed the Veteran that it did not consider the October 2010 VA Form 9 timely. See January 2011 correspondence. Henderson The Veteran argues that the AOJ should have accepted the Veteran’s untimely VA Form 9 because the 60-day deadline is not jurisdictional, as held (by analogy) in Henderson. See October 2011 correspondence. The Veteran’s reliance on Henderson is unnecessary and mistaken. In Henderson, the Supreme Court held that the 120-day deadline for filing a notice of appeal to the Court of Appeals for Veterans Claims does not have jurisdictional attributes. See Henderson, 562 U.S. at 441. However, it was well-established, long before Henderson, that the 60-day deadline for filing a VA Form 9 is not jurisdictional. See, e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, it is unnecessary to rely on Henderson by analogy, because it is accepted that the 60-day deadline at issue in this appeal is not jurisdictional. The Veteran’s argument appears to be that the 60-day deadline to file a VA Form 9 should simply be ignored because it is not jurisdictional. See October 2011 correspondence. Henderson explicitly states that it is not addressing whether that case fell within any exception to the 120-day deadline and that such deadline “is nevertheless an important procedural rule.” See Henderson, 562 U.S. at 442. The ruling does not render all non-jurisdictional deadlines void or legally irrelevant simply because they are not jurisdictional. While VA is not required to close an appeal for failure to file a timely VA Form 9 within 60 days, that does not mean the deadline is completely inoperative. Henderson specifically states that the 120-day deadline at issue in that case is still important, and thus, by inference, legally relevant. Indeed, if followed, the Veteran’s argument would render the 60-day deadline to file a substantive appeal completely void, and, in turn, any Veteran would have an indefinite amount of time to file a substantive appeal after an SOC has been issued. Such an interpretation is inconsistent with Henderson, VA’s regulatory scheme, and is without legal basis. Therefore, the Board finds that Henderson is inapplicable and does not render the Veteran’s October 2010 VA Form 9 timely. Other relief, to include equitable relief Because the 60-day rule is not jurisdictional, VA may waive it (by embracing the substantive appeal) or equitably toll it. The Veteran has argued that equitable estoppel should be applied to the matter because he relied, to his detriment, on the advice of TDVA. The evidence does not reflect VA waived the timeliness of the October 2010 VA Form 9. As a result, this current appeal is distinguishable from Percy v. Shinseki, 23 Vet. App. 37 (2009), where the AOJ had treated the Veteran’s claim as having been timely appealed for more than five years before ultimately deciding it was not. See id. at 46. In the present case, the AOJ has taken no action to indicate to the Veteran that his appeal from the July 2008 rating decision remained on appellate status. As a result, VA has not waived the untimeliness of the October 2010 VA Form 9. Regarding equitable tolling, TDVA is a state organization and is not affiliated with (federal) VA; thus, it cannot be argued that VA provided false information to the Veteran to his detriment. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). The Veteran has not provided extraordinary circumstances such that would warrant equitable tolling. Indeed, this is the type of garden variety claim of negligence (by TDVA, not the Veteran) that does not warrant equitable tolling. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (discussing that equitable tolling principles do not extend to a claim that an untimely filing should be excused because the claimant’s attorney was out of the office when a notice was received and he filed within 30 days of the date he personally received notice). The Board is sympathic to the Veteran and believes him and his fiancée to be sincere and credible, but unfortunately it is unable to remedy the faulty advice provided to him by TDVA. Because the evidence does not reflect, and the Veteran has not argued, he requested an extension prior to the expiration of the 60-day deadline to file a VA Form 9, 38 C.F.R. § 20.303 is not applicable. To the extent the Veteran argues that the VA appeal process is too onerous for a Veteran to understand, see June 2017 Board hearing, the Board is unable to provide relief for such obstacles, because it must follow the statutory and regulatory framework provided by Congress. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (“[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.”). To the extent that the Veteran has requested relief based on equitable estoppel that has not been addressed by the Board’s analysis of equitable tolling, see above, the Board is bound by statutes and regulations. 38 U.S.C. §§ 503, 7104; 38 C.F.R. § 19.5. The Board, as a legal body of statutory creation, is not empowered to grant a matter solely on an equitable basis. See 38 U.S.C. § 503(b); McCay v. Brown, 9 Vet. App. 183, 189 (1996). Any request for equitable relief must be presented directly to the Secretary of VA. Id. Because the law is dispositive, the issue must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, a claim should be denied on the basis of the absence of legal merit). The Board thanks the Veteran for his honorable service, and regrets a more favorable outcome could not be reached. New and Material Evidence Whether new and material evidence has been received to reopen a claim for a right wrist disability. The issue of entitlement to service connection for a right wrist disability was denied in a July 2008 rating decision on the basis that the evidence did not reflect a chronic or residual disability. The Veteran was notified of the decision in correspondence mailed the same month. The Veteran filed a NOD, but he did not file a timely VA Form 9 to an October 2009 SOC. As a result, that decision became final. Since the July 2008 rating decision, the Veteran has been diagnosed with positive right ulnar variance. See October 2017 VA examination. This evidence is clearly “new,” because it postdates the July 2008 rating decision, and is also “material,” because it represents a current right wrist disability; relates to a previously unestablished element of service connection; and raises a reasonable possibility of substantiating the underlying issue. Consequently, the issue of service connection for a right wrist disability may be reopened. Whether new and material evidence has been received to reopen a claim for residuals of a right mandible fracture. The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. Withdrawal can be by the Veteran or by his representative. Id. In an April 2018 written statement, the Veteran withdrew his appeal to reopen a claim of service connection for residuals of a right mandible fracture. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review an appeal on this matter, it is dismissed. REASONS FOR REMAND Entitlement to service connection for a right wrist disability is remanded. The Veteran has been diagnosed with right wrist pain (see February 2018 opinion by Dr. B. Fong, MD) and positive ulnar nerve variance which has been noted to be most likely congenital (see October 2017 VA examination). Dr. Fong opined that the Veteran’s right wrist pain is secondary to the position of his wrist on the cane he uses for his service-connected spine disability. See February 2018 opinion. However, in order for a Veteran to be service-connected for pain (in other words, for pain to be considered a disability for VA purposes), such pain must be accompanied by functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The record does not currently reflect that the Veteran has functional impairment in his right wrist. See, e.g., October 2017 VA examination. (The Board acknowledges that the Veteran reported that his thumb had limited range of motion, see August 2011 statement, but such impairment is not considered impairment of the wrist.) Additionally, Dr. Fong did not discuss the October 2017 VA examiner’s diagnosis of a congenital positive ulnar variance. As a result, Dr. Fong’s opinion is considered inadequate. The October 2017 VA examiner opined that the Veteran’s positive ulnar variance was congenital and not aggravated by his use of the cane. See October 2017 VA examination. However, this opinion merely relied on the absence of degenerative changes in x-rays without further explanation, and is therefore considered inadequate. Additionally, the examiner reported that walking with a cane can cause some wrist pain, but did not describe whether such pain is separate and distinct from any pain caused by the positive ulnar variance. As a result, remand for a new VA examination with an opinion is needed. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2018 to the present. 2. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran with an orthopedist, if available, to determine the nature and likely cause of any right wrist disability(ies) he may currently have. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a.) Please identify, by diagnosis, the Veteran’s right wrist disabilities, if any. The October 2017 VA examiner’s diagnosis of positive ulnar variance must be discussed. 1. If the Veteran is found to have a congenital disability, please identify whether such disability is a congenital defect or a congenital disease and explain why. (For VA adjudication purposes, a defect is a condition that can neither improve nor worsen. A congenital disease is a congenital condition that is subject to improvement and/or worsening.) (b.) Please opine on whether the Veteran has right wrist pain that is separate and distinct from any diagnosed right wrist disabilities, to include the right ulnar positive variance. Please explain why. If the Veteran has right wrist pain separate and distinct from any right wrist disabilities, please opine and explain whether the Veteran has right wrist functional impairment. (c.) For every disability diagnosed that is not congenital, or if there is right wrist pain with functional impairment distinct from any right wrist disability, is it at least as likely as not (50% or greater disability) that such disability or was either caused or aggravated by the Veteran’s service-connected spine disability, specifically, the use of a cane needed for that disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (d.) If a disability is diagnosed that is a congenital defect, do any other non-congenital disabilities of the wrist represent superimposed diseases or disorders of that congenital defect? Please explain why. If so, the examiner must discuss whether such superimposed disease or disorder is due to or aggravated by (i.e., permanently worsened beyond the normal progression of that disease) the Veteran’s service-connected spine disability (specifically, use of a cane for that disability). (e.) If a disability is diagnosed that is a congenital disease, was such disability aggravated (i.e., permanently worsened beyond the normal progression of that disease) due to the Veteran’s service-connected spine disability (specifically, use of a cane for that disability)? Please explain why. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel