Citation Nr: 21075607 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-48 203 DATE: December 21, 2021 ORDER The appeal as to the matter of whether a timely substantive appeal was received following an October 1976 Statement of the Case issued on a claim for service connection for a bilateral ankle disorder is granted. The appeal as to the matter of whether a timely substantive appeal was received following an October 1976 Statement of the Case issued on a claim for service connection for a low back disorder is granted. The appeal as to the matter of whether a timely substantive appeal was received following an October 1976 Statement of the Case issued on a claim for service connection for a left varicocele is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral ankle disorder, now claimed as burn scars of the ankles, is remanded. Entitlement to service connection for a left varicocele is remanded. FINDINGS OF FACT 1. The Veteran properly perfected his appeal of the claim for service connection for a bilateral ankle disorder. 2. The Veteran properly perfected his appeal of the claim for service connection for a low back disorder. 3. The Veteran properly perfected his appeal of the claim for service connection for left testicle varicocele. CONCLUSIONS OF LAW 1. The criteria for perfecting an appeal of the claim for service connection for a bilateral ankle disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.302, 20.305 2. The criteria for perfecting an appeal of the claim for service connection for a low back disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.302, 20.305. 3. The criteria for perfecting an appeal of the claim for service connection for a left varicocele have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.302, 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1975 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1976 and September 2018 rating decisions by the Department of Veterans Affairs (VA). In July 2019, the case came before the Board. The Board found that the Veteran did not submit new and material evidence to reopen his claims for entitlement to service connection. Following the Board's decision, the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Remand (JMR). The parties agreed that the Board erred when it did not consider whether the Veteran properly perfected his appeal in November 1976. In addition, the parties agreed that the Board erred when it did not obtain the Veteran's VA treatment history prior to March 2009 and dating from September 2010 to September 2017. Lastly, the parties agreed that the Board erred when it did not obtain the Veteran's private treatment records from Dr. H. In view of the Board's favorable decision with respect to whether the Veteran perfected his appeal of these matters in November 1976, the Veteran's previously-identified new and material claims have been changed to claims concerning whether a timely substantive appeal was received following the issuance of the October 1976 Statement of the Case. Although the Veteran's attorney has received extensions for the submission of additional evidence, no additional evidence has been received in support of the claims, and his last extension request was denied by the Board in July 2021. Thus, the Board will proceed to adjudicate the issues on appeal. Timeliness of Appeal 1. Bilateral ankle disability 2. Low back disability. 3. Left testicle varicocele disability. Under VA regulations, an appeal consists of a timely filed 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 or correspondence containing the necessary information. 38 C.F.R. § 20.202. In this regard, VA amended its regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction 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, 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; 38 C.F.R. § 20.302 (b). A substantive appeal perfects the appeal to the Board and frames the issues to be considered. Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or other correspondence containing the necessary information. The substantive appeal must also indicate what issues are being perfected. Proper completion and filing of a substantive appeal are the last actions a Veteran needs to take to perfect an appeal. 38 C.F.R. § 20.202. Prior to March 24, 2015, VA was required to look to all communications from the appellant which could be interpreted as applications or claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (VA must liberally construe all documents filed by a claimant.) In October 1976, the Regional Office issued a Statement of the Case for the issues of entitlement to service connection of left varicole, back condition, and bilateral ankle condition. In November 1976, the Veteran submitted a blank VA-Form 9 with a letter. The letter stated "I am writing in concern of the appeal of my case and all my records. I am leaving to Puerto Rico in two weeks and therefore I want the request of my records and physical examination to be transferred to Puerto Rico. I am letting you know in advance so that I won't have any trouble when I get there." The Board acknowledges that the Veteran's VA Form 9 is not properly completed; however, the letter the Veteran sent with his Form 9 did express his intent to continue his appeal. Therefore, based on the totality of the Veteran's November 1976 filing, and after resolving all doubt in favor of the Veteran, the Board finds that the Veteran has properly perfected his appeal of the claims for service connection for a bilateral ankle disorder, low back disorder, and left varicole. Based on this determination, the issue of whether the Veteran submitted new and material evidence when he requested to reopen his claims in July 2018 is moot. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. 2. Entitlement to service connection for a bilateral ankle disorder, now claimed as burn scars of the ankles, is remanded. 3. Entitlement to service connection for a left varicocele is remanded. In June 2020, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Remand (JMR). The parties agreed that the Board erred when it did not obtain the Veteran's VA treatment history prior to March 2009 and dating from September 2010 to September 2017. Lastly, the parties agreed that the Board erred when it did not obtain the Veteran's private treatment records from Dr. H. Accordingly, the Board finds that a remand is necessary for the RO to associate these documents with the Veteran's claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify the years he received treatment from VA prior to 2009 and dating from September 2010 to September 2017. Then the RO should take all necessary steps to obtain the VA treatment records for the periods identified. 2. Take all steps necessary to acquire the Veteran's private treatment records from Dr. H. 3. Take all additional steps necessary to properly develop the Veteran's claims once this medical information has been associated with his claims file. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.