Citation Nr: 22051183
Decision Date: 09/08/22	Archive Date: 09/08/22

DOCKET NO. 19-21 169
DATE: September 8, 2022

REMANDED

Untimely (Notice of Disagreement) NOD is remanded.

REASONS FOR REMAND

The Veteran had active military service from February 1977 to March 1977.

In December 2021, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record.

Untimely NOD is remanded.

Historically, the Veteran filed a claim for service connection for bunions in April 2010. In June 2010, the Regional Office (RO) issued a rating decision denying service connection for bunions. At the time of the issuance of the June 2010 rating decision, the Veteran was represented by Disabled American Veterans (DAV), who was sent a copy of the decision. 

The Veteran appointed a new representative in May 2012. Through the new representative, a new claim for service connection for bunions was submitted in May 2012.

Following receipt of the May 2012 service connection claim, the RO became aware that the whereabouts of the Veteran were unknown. The RO contacted the Veteran's representative to obtain an address for the Veteran. There is documentation in the record noting that "On 07/10/2013, the decision was whereabouts unknown effective 06/01/2012." The documentation was generated and signed on July 10, 2013.

At the December 2021 Board hearing, the representative explained that the Veteran was in the Suffolk County Jail at that time of May and June 2013 communications with the RO, and an address was faxed to the RO in June 2013. The Board notes that this fax is not of record. The representative also advised that he and the Veteran did not hear anything about the claim until they were informed in early 2015 that the claim had been closed in July 2013.   

It is unclear based on the evidence of record if the RO provided the Veteran and his representative notice of the July 2013 decision, and if appellate rights were issued. Therefore, a remand is necessary to obtain any outstanding records.

The matters are REMANDED for the following action:

1. The AOJ must associate any decisions and notice letters issued to the Veteran and his representative addressing the claim of service connection for bunions and his appellate rights, to include a July 2013 decision in response to the pending May 2012 claim of service connection.  If the records are not available, the AOJ should make a formal finding of unavailability.

2. Thereafter, readjudicate the issue. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.

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The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.

 

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Temple, 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.