Citation Nr: 21067251 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-54 961 DATE: November 3, 2021 ORDER The appeal as to whether a December 20, 2017, VA Form 9 was timely filed is granted. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left arm surgery, including nerve damage and limitation to range of motion, is remanded FINDING OF FACT The December 20, 2017, VA Form 9 was initially received on December 14, 2017, and is timely. CONCLUSION OF LAW The December 20, 2017, VA Form 9 is timely. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from April 1974 to December 1976. A rating decision was issued in August 2016 and a Statement of the Case (SOC) was issued in October 2017. The Veteran submitted an in lieu of VA Form 9 in December 2017. In January 2018, the Veteran was informed that his in lieu of VA Form 9 was untimely. The Veteran perfected his appeal regarding the timeliness of the December 2017 in lieu of VA Form 9. In March 2021, the Veteran testified at a hearing before the undersigned. A transcript is associated with the record. Timeliness of the December 2017 VA Form 9. In order to perfect an appeal to the Board of Veterans Appeals (Board), a substantive appeal (VA Form 9 or equivalent statement) must be submitted within 60 days of the date of mailing of the SOC or the remainder the one-year period from the date of mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The Agency of Original Jurisdiction (AOJ) may close the case for failure to respond after receipt of the statement of the case (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Under 38 C.F.R. § 3.109, time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause." Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109(b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). On October 16, 2015, the Veteran filed a claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of left arm surgery, including nerve damage and limitation to range of motion. The Veteran's claim was denied in an August 2016 rating decision. The Veteran was notified of the decision in an August 22, 2016, notification letter. On October 17, 2016, the Veteran filed a timely notice of disagreement with the August 2016 rating decision. The AOJ issued a SOC on October 17, 2017. On December 20, 2017, the Veteran's representative submitted an undated statement from the Veteran that was accepted as a statement in lieu of a VA Form 9. In January 2018, the Veteran was informed that his VA Form 9 was untimely. Subsequently, the Veteran contacted his Congressman and stated that he emailed his representative on December 14, 2017, so his appeal should be considered timely. In January 2018, the Veteran's representative submitted documentation that the Veteran's VA Form 9 was submitted on December 14, 2017. He indicated that there were issues with their VA maintained email account. On January 24, 2018, the AOJ denied the Veteran's extension request. The question before the Board is whether the Veteran's untimely substantive appeal should be accepted as timely. Based upon the forgoing, the Board finds that the Veteran's substantive appeal was received on December 14, 2017, and is therefore timely. The delay in submission of the appeal was through no fault of the Veteran or his representative, but due to technical difficulties in the VA email system. The appeal is granted. REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left arm surgery, including nerve damage and limitation to range of motion. The Veteran underwent a left biceps avulsion on November 30, 2009. He provided informed consent for the procedure. 38 U.S.C. § 1151 provides, in pertinent part, that a veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility, and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In June 2016, VA obtained an opinion regarding the Veteran's claim. The opinion establishes that the Veteran has an additional disability that was caused by his November 2009. The VA examiner found that the Veteran's radial neuropathy was a mild ongoing residual of his surgery. She elaborated that during the surgical procedure, it was impossible to visualize the radial tuberosity, even with pronation/supination maneuver and that an alternate fixation location was required. This location was close to the expected course of the radial nerve. The VA examiner concluded that the anatomical variations in the Veteran's case required the use of the alternative fixation. This was an unavoidable technical issue rather than the result of lack of skill, carelessness, etc. The Board finds that this opinion is inadequate because it does not address whether the Veteran's radial neuropathy was a reasonably foreseeable complication related to his November 2009 surgery. Additionally, there is no rationale for the conclusion that the use of an alternative fixation site did not demonstrate lack of skill, carelessness, etc. A remand is required to obtain an adequate VA medical opinion. The matter is REMANDED for the following actions: 1. Obtain an addendum medical opinion. The VA examiner must answer the following questions: (a.) Is the Veteran's additional disability, radial neuropathy, due to an event not reasonably foreseeable? That is to say, was the event that proximately caused the additional disability one that a reasonable health care provider would not find to be an ordinary risk of biceps avulsion? (b.) Did the VA providers demonstrate carelessness, negligence, lack of proper skill, error in judgment, when they used an alternate fixation location during the November 2009 biceps avulsion? A rationale must be provided for the opinions. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.