Citation Nr: 0000486 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 92-21 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel REMAND The appellant served on active duty from May 1966 until May 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 1992 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) regional office (RO). It is now under the jurisdiction of the Muskogee, Oklahoma, RO. This case was before the Board previously in November 1994 when it was remanded for additional factual development. The requested development has been completed. However, remand is required in order to provide due process and to permit the appellant an opportunity to perfect an appeal. In order to perfect an appeal of an adverse determination, governing statutory and regulatory provisions require the submission, following an adverse rating action and adequate notice thereof, of a notice of disagreement and, following issuance of a statement or supplemental statement of the case, a substantive or formal appeal, within the specific time limits established. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1999). An August 1992 rating decision denied service connection for residuals of Agent Orange exposure. The appellant was notified of that decision through a supplemental statement of the case (SSOC), provided in August 1992. In October 1992, the appellant's representative filed a Statement of Accredited Representation in Appealed Case expressing the appellant's disagreement with the denial of entitlement to service connection for residuals of exposure to Agent Orange. This document is adequate to express disagreement with the denial of service connection, and it was filed within a year of the denial of service connection. The Board accepts this as a notice of disagreement (NOD). However, in order to perfect an appeal, the appellant must be provided a statement of the case and be advised of the procedure and time limits within which he must perfect his appeal. The appellant has not been accorded this process in this case. He did, in December 1993, file at the Board of Veterans' Appeals a VA Form 9, in which he listed several disabilities claimed as residuals of Agent Orange exposure, including post-traumatic stress disorder (PTSD), cardiovascular disorder, weakness of the lower extremities, chloracne, and bipolar disorder. VA regulations provide that a notice of disagreement and substantive appeal "must be filed with the [VA] office from which the claimant received notice of the determination being appealed . . ." 38 C.F.R. § 20.300 (1999). Filing a purported NOD or appeal at the Board is not sufficient. See Beyrle v. Brown, 9 Vet. App. 24, 28 (1996) (hearing testimony before the Board, even though given within the one-year NOD filing period, cannot constitute a valid NOD, because it was taken before the Board and not the RO and it did not serve to trigger or initiate appellate review). Therefore, this document, had it been timely filed, could not perfect the appeal, because it was filed at the Board. Regardless of that, the appellant had not yet been properly notified of the decision and of the time limits and procedure for perfecting his appeal. In February 1999, the RO provided a supplement statement of the case to the appellant addressing that issue. The RO failed to notify the appellant of the requirements for perfecting his appeal of that issue. Indeed, the RO informed the appellant erroneously that further action on his part was unnecessary. The appellant has never filed a substantive or formal appeal of this issue, nor is there of record a timely communication from his representative, filed at the RO, that would be effective as a substantive appeal. "Jurisdiction does indeed matter and it is not 'harmless' when the VA during the claims adjudication process fails to address threshold issues." McGinnis v. Brown, 4 Vet. App. 239, 244 (1993); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[I]t is a 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."); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED to the RO for the following action: The appellant and his representative, if any, should be furnished a statement of the case and given the opportunity to respond thereto. The statement of the case should address the appellant's claim for entitlement to service connection for residuals of Agent Orange exposure. The statement of the case should set forth all pertinent laws and regulations, and should include a discussion of the application of those laws and regulations to the evidence. The appellant and his representative must be notified of the time limit within which an adequate substantive appeal must be filed and of the requirements for an adequate substantive appeal in order to perfect an appeal of this issue. If, and only if, a timely and adequate substantive appeal is received, the claim should then be returned to the Board for further review, as appropriate. No action is required of the appellant until he is contacted by the regional office. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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. J. SHERMAN ROBERTS 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).