Citation Nr: 0005190 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-16 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether a timely Substantive Appeal was received on the issue of entitlement to service connection for residuals of an injury to the left hand or forearm (claimed as a burn scar to the forearm). 2. Entitlement to an initial evaluation in excess of 10 percent for residuals of a head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant, A.H., and S.S. ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from October 1942 to January 1946. This appeal arose from April 1998 and October 1998 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 1998, the RO determined that the veteran had not filed well- grounded claims of entitlement to service connection for "residuals of head injury" and a "burn scar to the forearm." In October 1998 entitlement to service connection was granted for "residuals of head injury" with assignment of a 10 percent evaluation effective July 28, 1997. As the benefit sought on appeal (entitlement to service connection) was granted in full, that issue is therefore considered to be resolved. The veteran did file a timely notice of disagreement (NOD) on the issue of the initial 10 percent evaluation assigned for residuals of a head injury. The appellant and his wife and daughter provided testimony before a Hearing Officer at a hearing at the RO in September 1998, a transcript of which has been associated with the claims file. These witnesses also provided testimony before a Member of the Board of Veterans' Appeals (Board) at a hearing at the RO in October 1999, a transcript of which has been associated with the claims file. The case has been forwarded to the Board for appellate review. With respect to the veteran's claim of entitlement to service connection for residuals of an injury to the left hand or forearm (claimed as a burn scar to the forearm), the issue on the title page has been rephrased to reflect, as is discussed in more detail below, the question of whether a timely Substantive Appeal has been received is raised by the record and must be addressed in the first instance. With respect to the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for residuals of a head injury, the Board notes that at issue is a claim of entitlement to a higher initial evaluation, rather than an increased rating claim. This distinction was drawn in the case of Fenderson v. West, 12 Vet. App. 119 (1999), in which it was held that in appeals from an initial assignment of a disability evaluation, ratings may be "staged" (i.e., different ratings may be assigned for different periods of time). The issue on the title page of this decision has been amended accordingly. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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 veteran's claim of entitlement to service connection for residuals of an injury to the left hand or forearm (claimed as a burn scar to the forearm) was denied in April 1998. The RO notified him of the rating decision by letter dated April 27, 1998. He submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in the nature of an NOD in August 1998. A statement of the case (SOC) was issued in November 1998. Thereafter it does not appear that any formal Substantive Appeal was filed. In October 1999, the veteran's representative submitted a VA Form 646, Statement of Accredited Representative in Appealed Case, listing the issues on appeal as including entitlement to service connection for "residuals of burn scars to the forearm." The veteran or his representative must file an NOD from a determination of the agency of original jurisdiction within one year of the date of notification that determination. 38 C.F.R. § 20.302(a) (1999). A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction 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, whichever period ends later. 38 C.F.R. § 20.302(b) (1999). The VA General Counsel has issued an opinion that the Board may address in the first instance whether a timely Substantive Appeal has been submitted. However before dismissing an appeal for lack of a timely Substantive Appeal the Board should provide adequate procedural protections. VAOPGCPREC 09-99. The Court has held that before the Board addresses a question that has not been considered by the RO, it must consider whether the veteran has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, an opportunity to address the question at a hearing, and whether or not the claimant has been prejudiced by being denied those opportunities. Bernard v. Brown, 4 Vet. App. 384 (1993). It is indisputable that the veteran has not been given an opportunity to present evidence and argument on the issue of whether a timely Substantive Appeal has been submitted on the issue of entitlement to service connection for residuals of an injury to the left hand or forearm (claimed as a burn scar to the forearm) and he has not been afforded an opportunity to address the matter at a hearing. He would clearly suffer prejudice by being denied those opportunities. Therefore a remand to the RO is necessary as a matter of due process. Turning to the claim of entitlement to an initial evaluation in excess of 10 percent for residuals of a head injury, the matter with which the veteran initially disagreed was the denial of entitlement to service connection. Service connection was ultimately granted. The veteran submitted a timely NOD from the initial 10 percent evaluation assigned. However, the claims folder does not contain an SOC on the issue of entitlement to an initial evaluation in excess of 10 percent for residuals of a head injury. When an NOD is filed, failure to issue an SOC is a procedural defect requiring a remand. Godfrey v. Brown, 7 Vet. App. 398 (1995); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly a remand to the RO is necessary as a matter of due process. However, an appeal shall be returned to the Board only if perfected through filing of a timely Substantive Appeal. Smallwood v. Brown, 10 Vet. App. 93 (1997). To ensure full compliance with due process requirements, the Board is deferring adjudication of the issues on appeal pending a remand of the case to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. An SOC should be provided on the issue of entitlement to an initial evaluation in excess of 10 percent for residuals of a head injury. The RO should give consideration to all applicable laws, regulations, and cases to include whether staging of ratings is appropriate pursuant to Fenderson v. West, 12 Vet. App. 119 (1999). The veteran should be provided with a statement of procedural and appellate rights for completing an appeal to the Board. 3. The RO should determine whether a timely Substantive Appeal was filed with respect to the issue of entitlement to service connection for residuals of an injury to the left hand or forearm (claimed as a burn scar to the forearm). The veteran should be given an opportunity to submit evidence and argument on this issue. If the benefits requested on appeal, for which a timely NOD has been filed, are not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case (SSOC). Thereafter, the case should be returned to the Board for appellate review only if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).