Citation Nr: 0007848 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-03 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation for residuals of traumatic nasal septum deflection, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for residuals of facial fractures. 3. Entitlement to service connection for ear disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served on active duty from April 1967 to April 1969. This appeal arises before the Board of Veterans' Appeals (Board) from a November 1997 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has also construed statements by the veteran on appeal as a notice of disagreement with regard to the RO's January 1999 decision to deny an increased (compensable) evaluation for sinusitis, and this claim will be remanded for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The record also indicates that the veteran has contended that he has an eye disability which is related to the period of service. The issue of entitlement to service connection for an eye disorder is referred to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). Regardless, the issue is not before the Board. Jurisdiction does indeed matter and it is not "harmless" when the VA during the claims adjudication process fails to consider threshold jurisdictional issues. Absent a decision, a notice of disagreement, a statement of the case and a substantive appeal, the Board does not have jurisdiction of the issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). An application that is not in accord with the statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). Furthermore, this Board Member cannot have jurisdiction of this issue. 38 C.F.R. § 19.13 (1999). The Court has noted that: Furthermore, 38 U.S.C.A. § 7105 (West 1991) establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other "agency of original jurisdiction" (AOJ) (see Machado v. Derwinski, 928 F.2d 389, 391 (Fed. Cir. 1991)) before a claimant may secure "appellate review" by the BVA. Subsection (a) of that section establishes the basic framework for the appellate process, as follows: Appellate review will be initiated by a notice of disagreement [(NOD)] and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Bernard v. Brown, 4 Vet. App. 384 (1994). Few of the steps required for jurisdiction have been satisfied. More recently, when another part of VA argued that an issue over which the Board did not have jurisdiction should be remanded, the Court again established that jurisdiction counts. Specifically the Court could not remand a matter over which it has no jurisdiction. Hazan v. Gober, 10 Vet. App. (1997). The Court has also held that referral is appropriate. Black v. Brown, 10 Vet. App. 279, 284 (1997). REMAND Having reviewed the record, the Board has determined that the claims on appeal must be remanded to the RO in order to ensure compliance with due process considerations. Specifically, the record indicates that the claims for service connection for residuals of facial fracture and ear disease were last addressed by the RO at the time of a December 1998 Supplemental Statement of the Case, and the claim for an increased evaluation for residuals of nasal septum deflection was last addressed by the RO at the time of a March 1998 Statement of the Case. However, the record includes additional pertinent evidence which the veteran submitted in support of his appeals in 1999, to include medical statements from his private physicians, lay statements, and other documentation. The above-described evidence, as well as the report of a September 1998 VA examination, has not yet been considered by the RO. In light thereof, the appeal must be remanded to the RO so that the veteran may be afforded a Supplemental Statement of the Case which addresses all of the evidence pertinent to his appeals. See 38 C.F.R. § 19.31 (1999). The Board also notes that a claim for an increased (compensable) evaluation for sinusitis was denied by the RO in January 1999. The Board has construed a March 1999 statement as a notice of disagreement with regard to that rating action. In Manlincon v. West, 12 Vet. App. 238, 240- 41 (1999), the U.S. Court of Appeals for Veterans Claims determined that, in a case in which a veteran expressed disagreement in writing with an RO decision and the RO failed to issue a Statement of the Case, the Board should remand the issue to the RO for the issuance of a Statement of the Case. On remand, the RO will have the opportunity to prepare a Statement of the Case with regard to this issue in accordance with 38 C.F.R. § 19.30 and the holding in Manlincon. Accordingly, the instant claims are REMANDED for the following action: 1. The RO should review the record with consideration of the all of the evidence and issue a SSOC. With regard to the claims for service connection for ear disease and for residuals of facial fracture, the veteran is reminded that he has a duty to submit evidence of a well grounded claim. If has relevant evidence, that evidence must be submitted by him to the RO. 2. The RO should furnish the veteran with a Statement of the Case with regard to the issue of entitlement to an increased (compensable) evaluation for sinusitis. If any of the instant claims remain denied upon completion of the above action, such claims should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The purpose of this remand is to ensure compliance with due process considerations. The Board intimates no opinion as to the ultimate outcome of the claims on appeal. H. N. SCHWARTZ Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).