Citation Nr: 0005249 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 93-24 337 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). (The issue of entitlement to waiver of recovery of an overpayment of improved pension benefits, to include the issue of the proper creation of the overpayment, will be the subject of a separate decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision by the New York, New York RO which, in pertinent part, determined that the veteran had not submitted new and material evidence to reopen a claim for entitlement to service connection for PTSD. The Board notes that before the issue of reopening a claim arises, it first must be determined that there was a final determination on the claim. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (1999). The decision that follows will address whether a final determination on the claim of service connection for PTSD has been made. FINDINGS OF FACT 1. The veteran's claim for entitlement to service connection for PTSD was denied by rating action in October 1985; the veteran was notified of this denial by letter dated in November 1985. 2. A Notice of Disagreement challenging the RO's decision was received in November 1985. 3. In December 1985, the RO issued a Statement of the Case (SOC) to the veteran. 4. During an April 1986 personal hearing, the veteran expressed his desire to appeal the issue of entitlement to service connection for PTSD; the hearing transcript constitutes the veteran's substantive appeal. CONCLUSION OF LAW A timely appeal of the RO's October 1985 rating decision was filed. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.301, 20.302, 20.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Under applicable criteria, an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. The notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed within one year from the date that the agency mailed notice of the determination to the claimant. Otherwise, that determination will become final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.301, 20.302. The substantive appeal can be set forth on a VA Form 9 (Appeal to the Board of Veterans' Appeals) or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to errors of fact or law made by the RO. To be considered timely, the substantive appeal must be filed within 60 days from the date that the RO 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. Additionally, an extension for filing a substantive appeal may be granted on motion filed prior to the expiration of the time limit described above. 38 C.F.R. §§ 20.202, 20.302(b), 20.303. If the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993) (Steinberg, J., dissenting). In the case at hand, the New York, New York RO issued a rating decision in October 1985 that denied service connection for PTSD. In November 1985, the RO sent a letter to the veteran informing him of the decision and advising him that he had one year from the date of the letter to initiate an appeal by filing a notice of disagreement. In November 1985, the New York RO received a Notice of Disagreement from the veteran. Thereafter, the RO issued a SOC in December 1985. During an April 1986 personal hearing, the veteran expressed his desire to appeal the issue of entitlement to service connection for PTSD. The Board finds that the hearing transcript is sufficient to constitute a timely filed substantive appeal, as the veteran's testimony was taken within the remainder of the one-year period from the mailing of the 1985 determination being appealed. See 38 C.F.R. §§ 20.202, 20.302. As a result, the RO's October 1985 decision is not final, and the veteran's claim must be adjudicated on a de novo basis. ORDER As the appellant filed a timely appeal of the RO's October 1985 rating decision denying entitlement to service connection for PTSD, the appellant's claim was not finally denied and the claim remains pending. To this extent, the appeal is granted. REMAND The veteran contends that the RO erred by failing to grant service connection for PTSD. As noted above, the veteran filed a timely appeal of the RO's October 1985 rating decision denying entitlement to service connection for PTSD. Thereafter, the RO issued a SSOC in September 1986 and again in October 1986; however, the case was never forwarded to the Board for adjudication. Recently, the veteran attempted to reopen his claim for service connection for PTSD. It is noted that additional evidence (including numerous treatment records) was received subsequent to the issuance of the statements of the case, which has not been reviewed by the RO. The Board notes that the appellant did not specifically waive RO consideration of this additional evidence. Since consideration of this evidence by the RO was not waived, the RO must be given the opportunity to review this evidence before the Board can enter a decision. See 38 C.F.R. § 20.1304(c). In view of the forgoing, the case is REMANDED to the RO for the following action: The RO should review the claim for service connection for PTSD in light of all the evidence of record, including evidence obtained subsequent to the statements of the case, and adjudicate the claim on a de novo basis. If the claim is denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case addressing the merits of the claim. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. C. W. SYMANSKI Member, Board of Veterans' Appeals