BVA9504112 
DOCKET NO.  89-27 035     )       DATE
          )
          )

Certified for appeal by the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to a 100 percent evaluation for valvular and
arteriosclerotic heart disease, postoperative, one vessel
coronary artery bypass with mitral valve replacement and anginal
syndrome, for the period from November 1, 1988, to December 14,
1992.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. Jennifer Lane

INTRODUCTION

The veteran had active service from March 1952 to January 1954.

This case originated from a rating decision dated in April 1988
of the Nashville, Tennessee Regional Office.  The veteran
appealed that decision, and the Board denied service connection
for cardiovascular disease in March 1990.  The veteran appealed
that decision to the United States Court of Veterans Appeals
(Court).
In December 1992, the Court remanded the matter to the Board for
further proceedings.  [citation redacted].


In a decision issued in September 1992, the Board determined that
there was no clear and unmistakable error in a July 1954 rating
decision which denied service connection for heart disease;
determined that new and material evidence had been received to
reopen a claim for entitlement to service connection for heart
disease; and granted service connection for mitral valve disease.
The Board also attached a remand to its decision.  The remand
instructed the Regional Office to address the issue of
entitlement to service connection for arteriosclerotic heart
disease.

In a rating decision dated in January 1993, the North Little
Rock, Arkansas Regional Office (RO) determined that the veteran's
coronary artery disease was secondary to his mitral valve disease
and part of the mitral valve disease.  The RO also assigned
disability evaluations for valvular and arteriosclerotic heart
disease, postoperative, one vessel coronary artery bypass with
mitral valve replacement and anginal syndrome which are specified
below.  The case is currently before the Board for appellate
consideration of the January 1993 rating decision.

The Board also notes that in a letter dated in December 1994, the
veteran indicated his desire to no longer pursue the issue of
whether there was clear and unmistakable error in the July 1954
rating decision.  Additionally, in response to the veteran's
contention in his July 1993 notice of disagreement that he has
been totally disabled since surgery in August 1987, the RO sent
him a VA Form 21-8940 (Veteran's Application for Increased
Compensation Based on Unemployability) so that he could file a
claim for entitlement to a total disability rating for
compensation purposes based on individual unemployability.
However, the veteran has not returned said form or otherwise
indicated that he wished to pursue a claim for a total disability
rating for compensation purposes based on individual unemploy-
ability.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that a 100 percent evaluation
should have been assigned for his service-connected heart disease
assigned since November 1, 1988.  He asserts that he was totally
disabled the entire period from March 9, 1988, to December 15,
1992.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the veteran did not perfect an appeal of the claim for
entitlement to a 100 percent evaluation for valvular and
arteriosclerotic heart disease, post-operative, one vessel
coronary artery bypass with mitral valve replacement and anginal
syndrome, for the period from November 1, 1988, to December 14,
1992.

FINDINGS OF FACT

A substantive appeal or response to the supplemental statement of
the case was not filed within 60 days from the date of mailing of
the supplemental statement of the case.

CONCLUSION OF LAW

The veteran did not file a timely substantive appeal or response
to the supplemental statement of the case.  38 U.S.C.A. § 7108
(West 1991); 38 C.F.R. §§ 20.202, 20.302 (1993).

REASONS AND BASES FOR FINDING AND CONCLUSION

The pertinent procedural history of this case may be briefly
summarized.  In the January 1993 rating decision, the RO assigned
a 100 percent evaluation, effective March 9, 1988; a 30 percent
evaluation, effective November 1, 1988; a 60 percent evaluation,
effective May 11, 1989; and a 100 percent evaluation effective
December 15, 1992 for valvular and arteriosclerotic heart
disease, postoperative, one vessel coronary artery bypass with
mitral valve replacement and anginal syndrome.  The RO sent the
veteran notice of the January 1993 rating decision and notice of
his appellate rights on January 12, 1993.  The veteran filed a
notice of disagreement in July 1993, and the RO issued the
supplemental statement of the case on November 10, 1993.

The letter attached to the November 1993 supplemental statement
of the case informed the veteran that he must respond within 60
days to perfect his appeal of any additional issue not included
in his substantive appeal.  The Board notes the address to which
the supplemental statement of the case was mailed is the same
address which the veteran included in his notice of disagreement
and was the last address of record when the supplemental
statement of the case was issued.

An appeal consists of a timely notice of disagreement in writing
and, after a statement of the case has been furnished, a timely
substantive appeal.  38 U.S.C.A. § 7105(d)(3) (West 1991); 38
C.F.R. § 20.200 (1993).  In this case the veteran was furnished
with a supplemental statement of the case.  A response to a
supplemental statement of the case is optional unless the
statement of the case covers issues not included in the original
statement of the case in which case a substantive appeal
regarding the additional issues must be filed within 60 days in
order to perfect the appeal with respect to the additional
issues.  38 C.F.R. §§ 20.202, 20.302(c).  Also, a substantive
appeal must be filed within 60 days from the date that the agency
of original jurisdiction mails the Statement of the Case 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.  38 C.F.R.
§ 20.302(b).  While the veteran related that he was totally
disabled due to a heart problem in the substantive appeal filed
in March 1989 in connection with the April 1988 rating decision,
the issue of what disability evaluation was warranted was
premature as the veteran's heart disease was not service-
connected at that time.  Moreover, the statement of the case and
prior supplemental statement of the case did not address the
issue of entitlement to a 100 percent evaluation for valvular and
arteriosclerotic heart disease, postoperative, one vessel
coronary artery bypass with mitral valve replacement and anginal
syndrome, for the period from November 1, 1988, to December 14,
1992.

Thus, the veteran had until January 1994, to file a timely
substantive appeal or response to the supplemental statement of
the case.  However, no response from either the veteran or his
representative acting on his behalf was received on or
prior to January 1994.  In fact, the next document in the claims
file from either
the veteran or his representative is a VA Form 646 (Statement of
Accredited Representative in Appealed Case) which was dated March
23, 1994.  Therefore, it does not appear that either the veteran
or his representative even attempted to perfect the appeal within
60 days after the supplemental statement of the case was issued.

The Board notes that a veteran may request an extension of the 60
day period for responding to a supplemental statement of the case
for good cause.  The request for such an extension should be in
writing and must be made prior to the expiration of the time
limit for filing the response to the supplemental statement of
the case.
38 C.F.R. §§ 20.202, 20.303 (1993).  Review of the claims file
discloses no evidence that the veteran requested such an
extension in order to respond to the November 1993 supplemental
statement of the case.

If there is a failure to comply with the law or regulations, it
is incumbent upon the Board to reject the application for review
on appeal.  38 U.S.C.A. §§ 7105, 7108 (West 1991).  Rowell v.
Principi, 4 Vet.App. 9 (1993); Roy v. Brown, 5 Vet.App. 554
(1993).  Jurisdiction does indeed matter and it is not "harmless"
when the VA during the claims adjudication process fails to
consider threshold jurisdictional issues.  This is particularly
true when the Secretary ignores the mandates of
38 U.S.C.A. 7104(b) and 7105(c) (West 1991) which provide that
finally denied claims cannot be reopened without the submission
of "new and material evidence" under 38 U.S.C.A. 5108 in the case
of final Board decisions or without compliance with regulations
in the case of unappealed final RO denials.  McGinnis v. Brown,
4 Vet.App. 239, 244 (1993).  Because the veteran did not file a
timely substantive appeal or response to the November 1993
supplemental statement of the case, his claim for entitlement to
a 100 percent evaluation for valvular and arteriosclerotic heart
disease, postoperative, one vessel coronary artery bypass with
mitral valve replacement and anginal syndrome for the period from
November 1, 1988 to December 15, 1992, is dismissed.

The Board also points out that no determination is being made on
the merits of the veteran's claim.  The Board is dismissing that
claim because said claim is not properly before the Board on
appeal.  38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.200
(1993).  The law provides that "[t]he agency of original
jurisdiction may close the case for failure to respond after
receipt of the statement of the case, but questions as to
timeliness or adequacy of response shall be determined by the
Board of Veterans' Appeals."  38 U.S.C.A. § 7105(d)(3).

ORDER

The appeal is dismissed.

          LAWRENCE M. SULLIVAN
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.