Citation Nr: 21013234 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-05 205 DATE: March 9, 2021 ORDER Entitlement to a rating higher than 10 percent for right knee chondromalacia is dismissed. Entitlement to a rating higher than 10 percent for left knee chondromalacia is dismissed. The petition to reopen the previously denied claim for service connection for a low back/lumbar spine disability is dismissed. The petition to reopen the previously denied claim for service connection for tinnitus is dismissed. The petition to reopen the previously denied claim for service connection for hepatitis C is dismissed. REMANDED The petition to reopen the previously denied claim for service connection for headaches is remanded. The petition to reopen the previously denied claim for service connection for insomnia, also claimed as a sleep condition, is remanded. 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 10 percent for left knee chondromalacia. 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 10 percent for right knee chondromalacia. 3. A substantive appeal alleging specific errors of fact or law was not filed with respect to the issue of whether new and material evidence had been received in order to reopen the previously denied claim for service connection for low back/lumbar spine strain. 4. A substantive appeal alleging specific errors of fact or law was not filed with respect to the issue of whether new and material evidence had been received in order to reopen the previously denied claim for service connection for tinnitus. 5. A substantive appeal alleging specific errors of fact or law was not filed with respect to the issue of whether new and material evidence had been received in order to reopen the previously denied claim for service connection for hepatitis C. CONCLUSIONS OF LAW 1. An adequate substantive appeal on the claim of entitlement to a rating higher than 10 percent for left knee chondromalacia was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20 (formerly 20.200), 19.22 (formerly 20.202), 20.104 (formerly 20.101). 2. An adequate substantive appeal on the claim of entitlement to a rating higher than 10 percent for right knee chondromalacia was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 20.104. 3. An adequate substantive appeal on the issue of whether new and material evidence has been received in order to reopen the previously denied claim for service connection for low back/lumbar spine disability was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 20.104. 4. An adequate substantive appeal on the issue of whether new and material evidence has been received in order to reopen the previously denied claim for service connection for tinnitus was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 20.104. 5. An adequate substantive appeal on the issue of whether new and material evidence has been received in order to reopen the previously denied claim for service connection for hepatitis C was not filed; and the Board lacks jurisdiction to consider this issue. 38 U.S.C. §§ 7104, 7105, 7108; 38 C.F.R. §§ 19.20, 19.22, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1973 to June 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating higher than 10 percent for left knee chondromalacia 2. Entitlement to a rating higher than 10 percent for right knee chondromalacia 3. Whether new and material evidence has been received in order to reopen the previously denied claim for service connection for low back/lumbar spine disability. 4. Whether new and material evidence has been received in order to reopen the previously denied claim for service connection for tinnitus. 5. Whether new and material evidence has been received to reopen the previously denied claim for service connection for hepatitis C Issues 1-5: The Board has considered the adequacy of the substantive appeal in the following matters: entitlement to (1) a rating higher than 10 percent for left knee chondromalacia, (2) a rating higher than 10 percent for right knee chondromalacia; and whether new and material evidence has been submitted to reopen the previously denied claims for service connection for (3) low back/lumbar spine strain, (4) tinnitus, and (5) hepatitis C. 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. §§ 19.53, 20.104(c). In an April 2016 rating decision, the RO, inter alia, denied the following issues: entitlement to (1) a rating higher than 10 percent for left knee chondromalacia, (2) a rating higher than 10 percent for right knee chondromalacia; and whether new and material evidence has been submitted to reopen the previously denied claims for service connection for (3) low back/lumbar spine strain, (4) tinnitus, and (5) hepatitis C. In June 2016, VA received a NOD indicating that the Veteran wished to appeal the aforementioned issues, which were adjudicated in the April 2016 rating decision. In the same month, June 2016, the Veteran appointed J. Michael Woods as his attorney. See Power of Attorney (June 2016). 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. Id. In December 2019, 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 January 2020, 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 form 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 at issue. In April 2020, the RO certified the Veteran’s appeal to the Board and advised the Veteran that his appeal had been placed on the Board’s docket. In the same month, the attorney requested a 90-day extension, plus an additional 30 days, prior to the Board issuing a decision as they intended to submit additional evidence in support of his claims. In July 2020, the Veteran’s attorney submitted a brief with additional evidence, and indicated that these documents were their final submission in support of the appeal. He waived any remaining time and requested the appeal be forwarded to the Board for a decision. In an August 2020 letter, the Board advised the Veteran and his representative 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 Agency of Original Jurisdiction (AOJ) in reaching its determination, the VA Forms 9, substantive appeal, are inadequate. The Veteran and his representative were advised that he had not identified specific errors of fact or law in the RO’s determinations regarding the claims for entitlement to (1) a rating higher than 10 percent for left knee chondromalacia, (2) a rating higher than 10 percent for right knee chondromalacia; and whether new and material evidence has been submitted to reopen the previously denied claims for service connection for (3) low back/lumbar spine strain, (4) tinnitus, and (5) Hepatitis C. Further, in accordance with 38 C.F.R. § 20.104, the Board provided the Veteran and his representative 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. In response, in September 2020, the attorney declined to have a hearing or to submit any additional evidence or argument in regards to the appeal. A substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals.” 38 C.F.R. § 19.22. Prior to March 24, 2015, such could also consist of correspondence containing the necessary information. 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. § 19.22. The Board finds that absent specific allegations of error of fact or law, the Veteran’s VA Form 9, substantive appeal, are inadequate with respect to the claims for entitlement to (1) a rating higher than 10 percent for left knee chondromalacia, (2) a rating higher than 10 percent for right knee chondromalacia; and whether new and material evidence has been submitted to reopen the previously denied claims for service connection for (3) low back/lumbar spine strain, (4) tinnitus, and (5) Hepatitis C. Moreover, 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. § 19.53. The Veteran’s attorney was given an ample amount of time to submit or identify evidence or arguments in support of these claims but did not do so. In fact, he declined to submit additional evidence or argument or request a hearing. Therefore, no substantive argument was 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). Neither the Veteran, his attorney, or his current representative identified any specific error in support of the claims at issue. 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. §§ 19.20, 19.22, 20.104(c). REASONS FOR REMAND 7. The petition to reopen the previously denied claim for service connection for headaches is remanded. 8. The petition to reopen the previously denied claim for service connection for insomnia, also claimed as a sleep condition, is remanded. Issues 6-7: To ensure that VA has met is duty to assist, remand is necessary for the following reasons. First, in July 2020, a Social Security Administration (SSA) decision was associated with the claims file. However, the medical records used to support the decision have not been associated with the Veteran’s claims file. See SSA/SSI Letter (July 2020). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009) (VA's duty to assist is limited to obtaining relevant SSA records, defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim."). Second, remand is necessary to obtain all outstanding relevant VA treatment records. The most recent VA treatment record are dated March 2016 and were not updated prior to issuance of the December 2019 statement of the case. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the U.S. Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s VA treatment records for the period from March 2016 to the Present. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, 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.