Citation Nr: 20003149 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-17 022 DATE: January 14, 2020 ORDER An adequate substantive appeal having not been filed, the claim of entitlement to a rating higher than 70 percent for major depressive disorder (MDD) is dismissed. An adequate substantive appeal having not been filed, the claim of entitlement to a rating higher than 50 percent for sleep apnea is dismissed. As the claim has been withdrawn, the claim of entitlement to an effective date earlier than May 3, 2011, for the grant of service connection for MDD is dismissed. As the claim has been withdrawn, the claim of entitlement to an effective date earlier than May 28, 2014, for the grant of service connection for sleep apnea is dismissed. REFERRED In December 2016, VA received the Veteran’s application for increased compensation based on unemployability. See VA Form 21-8940 (December 2016). This claim remains pending. It has not been developed or adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ). As the claims for increase are not pending appeals with the Board, as explained below, they are not part-and-parcel of any perfected appeal on a claim for increase. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A substantive appeal alleging specific errors of fact or law was not filed with respect to the issue of entitlement to a rating higher than 70 percent for MDD. 2. A substantive appeal alleging specific errors of fact or law was not filed with respect to the issue of entitlement to a rating higher than 50 percent for sleep apnea. 3. On August 7, 2019, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of the claim of entitlement to an effective date earlier than May 3, 2011, for the grant of service connection for MDD is requested. 4. On August 7, 2019, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of the claim of entitlement to an effective date earlier than May 28, 2014, for the grant of service connection for sleep apnea is requested. CONCLUSIONS OF LAW 1. An adequate substantive appeal on the claim of entitlement to a rating higher than 70 percent for MDD was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202 (2017). 2. An adequate substantive appeal on the claim of entitlement to a rating higher than 50 percent for sleep apnea was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 20.200, 20.202. 3. The criteria for withdrawal of an appeal on the claim of entitlement to an effective date earlier than May 3, 2011, for the grant of service connection for MDD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal on the claim of entitlement to an effective date earlier than May 28, 2014, for the grant of service connection for sleep apnea are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to March 1981. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating higher than 70 percent for MDD 2. Entitlement to a rating higher than 50 percent for sleep apnea Issues 1-2: The Board has considered the adequacy of the substantive appeal in the following matters: (1) a rating higher than 70 percent for MDD and (2) a rating higher than 50 percent for sleep apnea (OSA). The Board’s authority to review an adverse RO decision is initiated by a claimant’s submission of a Notice of Disagreement (NOD) and completed by a substantive appeal after a Statement of the Case (SOC) has been furnished. 38 U.S.C. § 7105(a). It is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each issue before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett v. Brown, 83 F.3d 1380, 1383 (1996). Within the VA regulatory system, the Board is the arbiter of decisions concerning the adequacy of a substantive appeal. 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 20.101(c), 20.203. In a May 2016 rating decision, the RO, inter alia, implemented the Board’s grant of service connection for MDD and sleep apnea, assigning a 70 percent rating effective May 3, 2011, for MDD and a 50 percent rating effective May 28, 2014 for sleep apnea. The Veteran was notified of the decision in June 2016 with his attorney copied on that letter. See Notification Letter (June 2016). At this time, the record shows that J. Michael Woods was the Veteran’s attorney in matters before VA. The Veteran had appointed him as his attorney in November 2011. See Power of Attorney (November 2014). The record contains a concurrent fee agreement in which Mr. Woods agreed to provide legal services to the Veteran in his claims before VA in exchange for 20 percent of any past due VA benefits awarded to the Veteran. See Agent Fee Agreement (November 2014). In August 2016, VA received from the Veteran’s attorney a NOD indicating that the Veteran wished to appeal the initial evaluations assigned along with the effective dates for the grants of service connection for MDD and OSA. In February 2018, the RO issued a Statement of the Case (SOC) with an enclosed VA Form 9 in order to afford the Veteran the opportunity to perfect his appeal on the issues identified in his NODs, if he so desired. See 38 U.S.C. § 7105(d)(1). A copy of the SOC was duly provided to the Veteran’s attorney. The cover letter to the SOC advised as to the following: To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to the Board of Veterans’ Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions. Your appeal should address: the benefit you want, the facts in the Statement of the Case with which you disagree; and the errors that you believe we made in applying the law. In March 2018, the Veteran’s attorney submitted VA Form 9 indicating that the appellant wished to appeal all of the issues listed on the SOC and reiterating the Veteran’s belief that he was entitled to the benefits claimed. The forms and the associated cover letter did not include any reference to errors believed to have been made in applying the law as to the claims appealed. A vocational assessment was attached. In May 2018, the Veteran’s attorney submitted a brief which addressed one issue, which he characterized as individual unemployability. The Veteran’s attorney resubmitted portions of the Veteran’s medical records and VA exams in support of entitlement to TDIU. The attorney indicated that this was the final submission in support of the appeal and waived any remaining time to send additional evidence or arguments in favor of a Board decision. Subsequently, in May 2018, the RO advised the Veteran and his attorney that his appeal had been certified to the Board. February 2019 correspondence again waived any remaining time to send additional evidence or arguments in favor of a Board decision. In a July 2019 letter, the Board advised the Veteran and his attorney that the Board was considering the adequacy of the substantive appeal in these matters and that, absent an allegation of specific errors of fact or law made by the AOJ in reaching its determination, the VA Forms 9, substantive appeal, are inadequate. The Veteran and his attorney were advised that specific errors of fact or law in the AOJ’s determinations had not been identified with respect to the claims for (1) entitlement to a rating in excess of 70 percent for MDD; (2) entitlement to a rating in excess of 50 percent for sleep apnea; (3) entitlement to an effective date prior to May 3, 2011, for the grant of service connection for MDD; and (4) entitlement to an effective date prior to May 28, 2014, for the grant of service connection for sleep apnea. Further, in accordance with 38 C.F.R. § 20.101, the Board provided the Veteran and his attorney a 60-day period in which to present written argument or additional evidence, or to request a hearing regarding the adequacy of the substantive appeal. Thereafter, in an August 2019 written statement, the Veteran’s attorney indicated that the Veteran wished to withdraw all of his claims for earlier effective dates; and he reported that he felt the Veteran was entitled to TDIU due to his MDD and sleep apnea because the record showed he was totally impaired. See Third Party Correspondence (August 2019). The Veteran’s attorney argued that a TDIU claim is part and parcel of a claim for an increased rating and submission of the VA Form 21-8940 and request for TDIU is not a new claim for benefits under Rice. Referencing Rice v. Shinseki, 22 Vet. App. 447 (2009). However, he offered no contentions in support of the claims on appeal. Rather the Veteran’s attorney referred the Board to the May 2018 brief in support of entitlement to a TDIU but offered no further evidence or argument in support of the Veteran’s claims for increased ratings. The Board notes that the faxed statement indicated that the document contained “enclosure(s);” however, none were attached to the fax (page 1/1), and no further communication was received from the Veteran or his attorney. A substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals.” 38 C.F.R. § 20.202. Prior to March 24, 2015, such could also consist of correspondence containing the necessary information. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form). The Substantive Appeal should set forth specific allegations of error of fact or law related to specific items in the SOC and clearly identify the benefit sought on appeal. Id. Although the Board will construe all arguments advanced by a claimant in a liberal manner, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination or determinations being appealed or is not in conformity with VA law and regulations. 38 U.S.C. §§ 7105(d)(5), 7108; 38 C.F.R. § 20.202. The Board finds that, absent specific allegations of error of fact or law, the Veteran’s VA Form 9, substantive appeal, is inadequate with respect to the claims for (1) a rating higher than 70 percent for MDD and (2) a rating higher than 50 percent for sleep apnea. The attorney’s advancement of a claim for TDIU is not the equivalent of perfecting at appeal on the underlying claim(s) for an increased rating. Notably, although VA received an application for TDIU in December 2016, the AOJ has not yet developed and adjudicated the claim in the first instance. As the claims for increased ratings for MDD and sleep apnea have not been perfected with the submission of an adequate substantive appeal, the Board may not take jurisdiction over the pending TDIU claim. The Board finds that the attorney’s argument that the Board has jurisdiction over a TDIU claim under Rice is simply incorrect given that he did not perfect the appeal as to an underlying claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There are no other communications which could otherwise be reasonably construed as an adequate substantive appeal or a request for extension of time to file a substantive appeal. See 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.303. The Veteran’s attorney has been given multiple opportunities to submit or identify evidence or arguments in support of these claims but has not done so. In fact, almost two years have elapsed since the Veteran’s attorney was issued an SOC in these matters and yet no substantive argument has been provided or any specific error identified in support of the appeal as to matters to be dismissed here. In appeals to the Board, claimants must allege specific errors of fact or law, see 38 U.S.C. § 7105(d)(5), and attorneys are expected to present arguments in support of an appeal. See e.g. MODEL RULES OF PROF’L CONDUCT R. 1.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so.”); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to sympathetic reading below). Therefore, the Board must dismiss the appeal of these issues due to the absence of an adequate substantive appeal. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.101(c), 20.200, 20.202. 3. Entitlement to an earlier effective date for the grant of service connection for MDD. 4. Entitlement to an earlier effective date for the grant of service connection for sleep apnea. Issues 3-4: The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Here, on August 7, 2019, prior to the promulgation of a decision in the appeal, the Board received the written, signed notification from the Veteran’s attorney that a withdrawal was sought as to the claims of entitlement to an (1) effective date earlier than May 3, 2011, for the grant of service connection for MDD and (2) effective date earlier than May 28, 2014, for the grant of service connection for sleep apnea. See Third Party Correspondence (August 2019). The August 2019 written notice contained the Veteran’s name and claim number and was signed by the Veteran’s attorney. It is clear and unambiguous. Hence, there remains no allegation of errors of fact or law for appellate consideration regarding the aforementioned issues. Accordingly, the Board does not have jurisdiction to review the appeal as to those claims, and the appeal as those claims is dismissed. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.