Citation Nr: 0003302 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-09 960A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a chronic low back disorder. 2. Entitlement to service connection for chronic sinusitis. 3. Entitlement to service connection for a chronic left ankle disorder. 4. Entitlement to service connection for a fungus condition of the left foot. 5. Entitlement to service connection for degenerative joint disease (arthritis) of the wrists. 6. Entitlement to service connection for degenerative joint disease (arthritis) of the fingers of both hands. 7. Entitlement to service connection for degenerative joint disease (arthritis) of the elbows. 8. Entitlement to an initial disability rating in excess of 10 percent for degenerative changes at T1-C3 with a history of trauma, formerly evaluated as cervical back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from February 1970 to February 1996. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO) which, in pertinent part, granted service connection and assigned a noncompensable disability rating for cervical back pain. Service connection for sinusitis, pilonidal cyst, hemorrhoids, low back disorder, left ankle disorder and fungus of the left foot was denied. The veteran was informed of these determinations, as well as his procedural and appellate rights, by VA letter dated, April 14, 1997. He filed a timely of notice of disagreement in March 1998, at which time he raised 'additional' claims for service connection for arthritis of the: wrists, fingers of both hands, and elbows. In April 1998, the RO granted entitlement to an increased disability rating to 10 percent for degenerative changes at T1-C3 with history of trauma, formally evaluated as cervical back pain. The RO also granted service connection and assigned noncompensable disability evaluations for hemorrhoids and incision and drainage of a pilonidal cyst. However, the denial of service connection for sinusitis, low back disorder, left ankle disorder and fungus of the left foot was confirmed and continued. His claims for service connection for arthritis, although not listed on the cover page or discussed in detail in the body of the decision, were denied as not well grounded. The veteran was informed of these determinations, as well as his procedural and appellate rights, by VA letter dated, May 4, 1998; a copy of the Rating Decision was attached. Under separate cover letter issued that same day, the veteran was issued a statement of the case as to his cervical spine disorder, sinusitis, low back disorder, left ankle disorder and fungus of the left foot claims. In July 1998, the veteran filed a VA Form 9, which only mentioned his low back disorder and 'additional' arthritis claims. The American Legion filed a Form 646 in September 1998, which lists the veteran's claims as that of entitlement to service connection for sinusitis, pilonidal cyst removal, hemorrhoids, low back disorder, cervical spine disorder, left ankle disorder and left foot fungus condition. Concerning the veteran's hemorrhoid and pilonidal cyst claims, it is noted that the RO's April 1998 decision was a full grant of the benefits sought. As such, there is no longer an outstanding issue of fact or law pertaining to these claims. See Grantham v. Brown, 114 F .3d 1156 (1997). Moreover, a contemporaneous review of the records reveals that since the grant of service connection for these claims, neither the veteran nor his representative have submitted any statement that can reasonably be construed as expressing dissatisfaction with the compensation levels assigned. See 38 C.F.R. § 20.201 (1999). Additionally, it is noted that in his July 1998 VA Form 9, the veteran appears to have raised a claim of entitlement to service connection for degenerative joint disease (arthritis) of the shoulders. It does not appear that the RO has addressed this matter. Since this issue has not been properly developed for appellate consideration by the Board, and is not inextricably intertwined with the issue on appeal, it is hereby referred to the RO for appropriate action. See Kellar v. Brown, 6 Vet. App. 157 (1994). REMAND "[I]t is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Johnson (Anne) v. Brown, 7 Vet. App. 25, 27 (1994) (per curiam); Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Accordingly, a court or tribunal always has jurisdiction to determine its jurisdiction over a case. See Phillips v. Brown, 10 Vet. App. 25, 30 (1997) (citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L. Ed. 939 (1946)); Breslow v. Brown, 5 Vet. App. 560, 562 (1993)). Appellate review is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). A notice of disagreement is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO, and a desire to contest the result. 38 C.F.R. § 20.201 (1999). A notice of disagreement must be filed within one year from the date of mailing of notice of the result of the original review or determination. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(a) (1999). The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a) (1999). In order to complete the appeal, a claimant must file a substantive appeal within sixty (60) days of the mailing date of the statement of the case, or within the remaining time, if any, of the one (1) year period beginning on the date of notification of the rating decision. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1999). In addition, if a supplemental statement of the case covers an issue that was not included in the original statement of the case, a substantive appeal must be filed with respect to that issue within 60 days in order to perfect an appeal with respect to that additional issue, even if the 60-day period extends beyond one-year appeal period. See 38 C.F.R. § 20.302(c) (1999); see also VAOPGCPREC 9-97 (1997); 62 Fed. Reg. 15567 (1997). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a NOD and a formal appeal. When an appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the agency of original jurisdiction. Roy v. Brown, 5 Vet. App. 554, 556 (1993). Furthermore, the Court has found that jurisdiction does indeed matter, and it is not "harmless" when the VA, during the adjudication process, fails to consider the 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 (West 1991) 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). There is, however, an exception where the claimant requests an extension, and good cause is shown to grant the request. 38 C.F.R. § 3.109(b) (1999). The request for extension must be filed with the VA office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another VA office. A denial of a request for extension may be appealed to the Board. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.303 (1999). In the instant case, there appears to be a great deal of confusion as to which claims are properly before the Board. The purpose of this remand is, therefore, to inform the veteran of the appellate status of his various claims, to seek additional development and, where necessary, to afford him due process. In April 1998, the VARO completed a VA Form 8, Certification of Appeal, wherein it was indicated that claims for service connection for sinusitis, pilonidal cyst removal, hemorrhoids, degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, left ankle condition and a fungus condition of the right foot are the issues for consideration by the Board. After a contemporaneous review of the procedural history of this case, the Board finds that only the lumbar spine claim has been properly developed for review by the Board at this time. I. Lumbar Spine With regard to this issue, the Board notes that the RO denied entitlement to service connection in an April 1997 rating decision. The veteran filed a timely notice of disagreement, and was issued a statement on May 4, 1998. The RO received his substantive appeal, which specifically referenced this issue, on July 6, 1998. Although the veteran's substantive appeal was received by the RO 1 year and 6 days after the date of mailing of the letter of notification of the determination, the Board notes that according to 38 C.F.R. § 20.305 (1999), a document postmarked prior to expiration of the time period will be accepted as a timely filing; however, if a postmark is not of record, the postmark date will be presumed to be five days before receipt of the document, excluding Saturdays, Sundays, and legal holidays. Since an envelope postmark is not on file, the veteran's VA Form 9 may be presumed to have been mailed and constructively received by the RO five days before July 6, 1998 (i.e., July 1, 1998). In view of the foregoing, the Board finds that a timely substantive appeal has been filed by the veteran; therefore, his claim seeking entitlement to service connection for a lumbar spine disorder remains in appellate status. The Board further noted that "[a] person who submits a claim for benefits under a law administered by the Secretary [of Veterans Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, a claim which is plausible. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998), the Federal Circuit held that, under section 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). In that decision, the Court addressed and rejected the appellant's newly raised argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA has taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. Nonetheless, decisions of the Board must be based on all of the pertinent evidence available. 38 U.S.C.A. § 7104(a) (West 1991); see Gilbert v. Derwinski, 1 Vet. App. 49 (1991); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained) and Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches in cases where the record references other known and existing evidence that pertains to the claim under consideration). In the instant case, the veteran was afforded VA general medical examination in December 1996. Physical examination of the low back disorder was essentially normal; however, the examiner ordered nerve conduction velocity studies for evaluation of possible nerve impingement. To date, the veteran's nerve conduction study report has not been associated with his claims folder. Clearly, further development is necessary prior to appellate disposition. II. Sinusitis, Left Ankle Disorder, Fungus Condition of Left Foot & Cervical Spine Disorder With regard to these issues, the Board observes that although the veteran's May 1998 VA Form 9 was timely received, he failed to present any arguments with respect to these issues. In addition, there is no evidence presented that the veteran had filed a formal request for a time extension prior to the expiration of the time limit for filing a substantive appeal. Therefore, in accordance with the Court's findings in Roy, supra, the Board has no jurisdiction over these issues in spite of the fact that they were certified on appeal. Nonetheless, the Board notes that the veteran has not been informed of his apparent failure to timely perfect an appeal as to these issues and of the Board's lack of jurisdiction over the matter. Therefore, in order to accord the appellant every equitable consideration, the Board is remanding these claims to the RO so that the appellant may be provided with a statement of the case regarding the timeliness issue and an opportunity to present argument and evidence on this jurisdictional issue. See Marsh v. West, 11 Vet. App. 468, 470 (1998) (citations omitted) (the Board's obligation to assess its own jurisdiction cannot come at the expense of the procedural rights that belong to the appellant). III. Degenerative Joint Disease (Arthritis) Claims As noted above, the veteran raised, for the first time, claims for service connection for degenerative joint disease (arthritis) of the: wrists, fingers of both hands, and elbows in his March 1998 notice of disagreement. The American Legion has requested that this case be returned to the RO for adjudication of these issues. Yet, a contemporaneous review of the record reveals that a determination has already been made by the RO with respect to these claims. Although they were not listed on the cover page or discussed in detail in the body of the decision, the Board observes that the April 1998 rating specialist determined that these claims were not well grounded as they were not shown in service. See April 1998 Rating Decision at 6. In May 1998, the veteran was provided with a copy of this rating decision and informed of his procedural and appellate rights. In his July 1998 VA Form 9, the veteran also expressed dissatisfaction with the denial of his service connection claims. Accordingly, the Board accepts this statement as a timely filed notice of disagreement. See Tomlin v. Brown, 5 Vet. App. 355 (1993)(the statutory provisions of 38 U.S.C.A. § 7105 (West 1991) do not impose technical pleading requirements). The Court has directed that where an appellant has submitted a timely notice of disagreement with an adverse decision and the RO has not subsequently issued a statement of the case addressing the claims, the Board should remand the claims to the RO for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); and Pond v. West, 12 Vet. App. 341, 347 (1999). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should contact the Birmingham, Alabama VA Medical Center, and request a copy of the nerve conduction study report, if any, developed in conjunction with the veteran's December 1996 VA compensation and pension examination. Efforts to obtain these records should be documented and any evidence received in response to this request should be associated with the claims folder. 2. After the above actions have been completed, the RO must then re-adjudicate the veteran's claim for service connection for chronic low back disorder. If this determination remains unfavorable to the veteran in any way, he and his representative should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted and any additional applicable laws and regulations. This document should include detailed reasons and bases for the decisions reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. 3. The veteran should also be furnished a statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which summarizes the evidence pertinent to the timeliness of his substantive appeal as the issues of entitlement to an increased original disability rating for degenerative changes at T1-C3 with history of trauma, formally evaluated as cervical back pain, and service connection for sinusitis, left ankle disorder and a fungus condition of the right foot. This document should include detailed reasons and bases for the decisions reached. The veteran should then be given an appropriate opportunity to present argument and additional evidence regarding each issue. The veteran must be, and hereby is, notified that a timely substantive appeal (VA Form 9) as to the timeliness issues must be filed in order to perfect an appeal, and without such the Board will not have jurisdiction. 4. In addition, the RO should develop for appellate review the veteran's claims for service connection for degenerative joint disease (arthritis) of the wrists, fingers of both hands, and elbows. In this regard, the RO should review the various arguments and contentions submitted by or on behalf of the veteran, and provide him with a statement of the case regarding these issues. If any of these claims is deemed to be well grounded, additional evidentiary/medical development deemed appropriate to the appellate processing of that claim should be undertaken. The veteran must again be, and hereby is, notified that a timely substantive appeal (VA Form 9) must be filed in order to perfect an appeal as to his service connection claims, and without such the Board will not have jurisdiction. 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. A. BRYANT 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).